Dempsey (a Pseudonym) v The Queen [2019] VSCA 224

CRIMINAL LAW - Appeal - Interlocutory appeal - Identification evidence - Victim of armed robbery identified applicant from photoboard - Whether trial judge erred in finding identification evidence admissible - Application for leave to appeal dismissed - IMM v The Queen (2016) 257 CLR 300 and DPP v Hague [2018] VSCA 39 applied - Evidence Act 2008 s 137.

1 The applicant has been charged, on indictment, with one count of armed robbery (charge 1), one count of murder (charge 2) and one count of intentionally causing injury (charge 3). The armed robbery is alleged to have taken place early on 23 April 2018. The other two offences are alleged to have taken place seven days later, on 30 April 2018. Each of the offences are alleged to have occurred at the same location, 29 Wilson Street, Berwick. The victims of the offences were lured to those premises in the same manner. It is alleged that the applicant acted alone in committing the first offence, but that he acted in company with a co-accused, CM, in committing the offences that are the subject of charges 2 and 3.

2 The prosecution has filed an amended notice of tendency evidence pursuant to s 97(1)(a) of the Evidence Act 2008 notifying its intention to adduce tendency evidence in respect of charges 1 and 2. It also intends to rely on photoboard identification evidence of the victim of the offence that is the subject of charge 1.

3 Before the jury was empanelled, the applicant objected to the admissibility of both of those items of evidence. In separate decisions, the trial judge ruled that the tendency evidence is admissible in the trial,[2] and that the photoboard identification evidence is also admissible.[3] Pursuant to a certificate granted by the trial judge, the applicant seeks leave to appeal each of those decisions by way of interlocutory appeal.

4 When the application for leave to appeal first came before the Court for oral argument, the Court expressed concern that the reasoning that the prosecution sought to employ, in particular by using the evidence on charge 2 as tendency evidence to prove the identity of the offender in charge 1, is closely akin to coincidence reasoning. If the application for leave to appeal did not succeed, and the evidence on charge 2 were held to be admissible as tendency evidence on charge 1, there would be a significant risk that the prosecution might advance arguments that resemble coincidence reasoning, or that the jury might itself engage in such reasoning in any event. As a result of that concern, the application was adjourned, and the respondent served a notice of coincidence evidence pursuant to s 98(1)(a) of the Evidence Act. It is common ground that this Court may consider, and determine, the admissibility of the evidence on each charge, as coincidence evidence in respect of the other charge, notwithstanding that that issue did not come before the trial judge for determination.

5 It is necessary, at this stage, to set out, in some detail, a summary of the prosecution case.

6 On or about 19 April 2018, FD, the victim in the first charge, came across an online profile on an application called SKOUT in the name of 'Nikki'. When he clicked on that profile, Nikki replied, and they began a text conversation. On either 21 or 22 April 2018, Nikki gave FD a mobile telephone number which ended with the numerals 891, to enable him to contact her. That mobile telephone number was registered in the name of the applicant of 77 Melville Lane, Berwick, which was the residential address of the applicant. Subsequently, police seized two mobile telephones from that address. The SIM card pertaining to the 891 telephone service was found to have been used in both handsets.

7 On 22 April 2018, at 9.07 pm, the 891 telephone service messaged FD stating:

Hey. It's Nikki. I'm so sorry that I taken so long to get back to you babe. My eldest knocked my phone off the bench after we got home and it's fu@#Â¥d my phone.

8 A few messages then passed between Nikki and FD, before the text conversation ceased for a brief period.

9 At 10.56 pm on the same date, 22 April 2018, the 891 telephone service was then used to begin a text conversation with RF, who was the victim of charge 2 (murder). The text conversation was as follows:

• Nikki commenced 'Hello hello' and 'What are you doing babe'.

• RF replied 'Getting smokes then going home to make clouds and drink some juice lol' (relating to smoking methylamphetamine and ingesting GHB).

• Nikki then asked 'Would I be able to get a hb of you' (which denotes 1/16 of an ounce or 1.75 grams) and 'I want to try what yours is like before committing to something bigger'.

• RF replied 'I'm not quite selling half balls ATM as I was arrested the other night had all my cash and gear seized so ive had to start all over again I have enough [to] make a half ball but have to charge more than what I use to'.

• After some discussion about drugs, RF stated 'Do you drive your welcome to come over and try the gear and what I can do is cut you in with my re up that way we can both get a cheaper buy' ('re up' refers to when the amount of drugs is low and the dealer needs to re-stock).

• After further discussion, at 11.22 pm, Nikki stated 'Yeah we should be able to get something going between us. Just as long as I know it's a good hun'.

10 Immediately after messaging RF, the 891 telephone service was used at 11.24 pm to recommence the text conversation with FD about meeting together. The user of the 891 telephone service nominated the location at 29 Wilson Street, Berwick. The conversation finished with the user of the 891 telephone service saying 'Yeah sweet babe, I hope you're going to stay and chill with me for awhile'.

11 Sometime after 1.00 am on 23 April 2018, FD attended the premises at 29 Wilson Street, Berwick. Upon arrival, he sent a message to the 891 telephone service asking where he should park his vehicle. At 1.34 am, the 891 telephone service responded:

BTW babe where I live is a complex for women domestic violence long story short my ex used to beat me. But it's cool there's no staff here ... when you get here hun just pull up in the car park and come to the front doors and I'll buzz you in.

12 After some further discussions by text messages, FD went to the front door of 29 Wilson Street intending to meet Nikki. As he was waiting there, he heard a car door slamming. A short time later a male walked down the driveway towards FD, and stood next to him. The prosecution case is that that male was the applicant. The male said to FD words to the effect: 'Your mate Nikki that you are waiting for to let you in, give me what is in your pocket'. The male further stated 'Your mate Nikki, there is no Nikki. Give me what is in your pocket'. The male then lifted his left hand to his waist, and a knife became visible. He said to FD 'don't try anything stupid, I have boys in the car'. In response, FD handed over approximately half a gram of methylamphetamine that he had in his pocket. The male took possession of the drugs and walked away down the driveway.

13 FD later provided a physical description of the male to the police that was consistent with the appearance of the applicant. He correctly identified the applicant from a photoboard in circumstances that we will summarise later. In these reasons, we will refer to the incident, that took place on 23 April 2018, as 'the first incident'.

14 In the meantime, between 23 April and 25 April 2018, there was a further exchange of text messages between the 891 telephone service and RF concerning whether the user of the 891 telephone service wanted to purchase drugs from RF. Subsequently, between 25 April and 30 April 2018, arrangements were made between the user of the 891 telephone service and RF to meet for the purpose of an exchange of drugs.

15 On the evening of 30 April 2018 (the evening on which RF was murdered), a message was sent to RF using a telephone service ending in 385, that was registered to the applicant, via an unknown messaging service. It was in the following terms:

Where I live is a complex for domestic violence babe so I'll get u to park out front and come to the front doors. There is no staff so it's all good and I'll buzz you in when you get here hun.

16 The prosecution case is that on the same evening CM visited a local Woolworths store where he seized a knife from the shelf, placed it in his back pocket, and purchased a greeting card. During that transaction, the applicant was waiting outside the store.

17 In the meantime, MV, who was living in the same house as RF, was asked by RF to drive him to a Berwick address, so that he could 'hook up with a girl'. MV and RF left their home at 9.40 pm, and arrived at the address at 29 Wilson Street, Berwick some time later. After MV parked her vehicle, RF got out of it. RF suffered from hearing loss and night blindness, which caused him to stumble and bump into objects as he walked down the driveway. As a result, MV got out of her vehicle to assist him.

18 At about 10.39 pm, RF and MV were standing at the front door, when the applicant and CM approached them. MV recognised the applicant, because she had previously met him. The applicant said to RF and MV, 'Come on, give it, where is it'. MV said, 'What are you talking about, we don't have anything'. The applicant then walked over and punched her in the mouth, causing her to fall. At that point, CM had pulled a knife from the inside of the front pocket of his jumper and confronted RF holding it.

19 When MV hit the ground, she saw RF leaning over CM wrestling with him. She then saw the applicant run over and stab RF in the shoulder with a knife. MV went to the assistance of RF, and she stabbed the applicant in the ribs with a knife.

20 In the ensuing incident, which was captured by CCTV footage, RF sustained multiple stab wounds to his upper body and chest. MV suffered a stab wound under her left armpit, which punctured her lung, and another stab wound to her arm. Police and paramedics arrived at the scene at 10.48 pm. RF was pronounced deceased at 11.06 pm.

21 In the meantime, the applicant and CM departed the scene. They walked down Langmore Lane. There they lifted a Telstra pit lid on the nature strip and placed a mobile telephone in it. That mobile phone was later identified as belonging to MV. The applicant and CM were subsequently arrested, together with CM's domestic partner. Subsequently, police recovered a knife from premises at 46 Wilson Street, Berwick. A DNA profile was obtained from the handle of the knife. Statistically, it is 100 billion times more likely that the applicant was a contributor to the DNA. No blood was detected on the handle of the knife.

22 In these reasons, we will refer to the incident, that occurred on 30 April 2018, as 'the second incident'.

23 On 1 May 2018, an autopsy was conducted on the body of RF. The injuries that were found on the post-mortem included a stab wound to the right chest wall, stab wounds to the right and left shoulders, a superficial stab wound to the right hip, and incised wounds to the nose, right side of the face, right ear, right jawline and the right index finger. The stab wound to the right chest wall extended approximately seven centimetres, passing through the right fifth costal cartilage, the pericardian sac, and penetrating the right ventricle of the heart. That stab wound was determined to be the cause of death.

24 The applicant was charged with statutory murder contrary to s 3A(1) of the Crimes Act 1958. The prosecution case is that the applicant and CM were acting pursuant to an agreement to commit an armed robbery on RF during the course of which RF was killed.

25 The applicant denies that he used the 891 telephone service to contact FD, and he denies that he was the person who committed the armed robbery that is the subject of the first charge. Thus, the critical issue, in respect of charge 1, is that of identity.

26 The applicant admits that he did use the 891 telephone service to contact RF. He also admits that he attended the premises at 29 Wilson Street, Berwick with CM on 30 April 2018. However, he denies that he entered into an agreement with CM to commit an armed robbery, and he denies that CM's conduct, at the premises, was pursuant to any agreement with him.

27 Pursuant to s 97(1)(a) of the Evidence Act, the prosecution gave notice that it intended to adduce evidence to establish the tendency of the applicant to act in a particular way, namely:

To lure potential victims to 29 Wilson Street, Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knife point.

28 In the notice, the prosecution stated that it intended to rely on that tendency of the applicant first, as probative of the applicant being the offender who committed the armed robbery on FD, on 23 April 2018 (charge 1), and, secondly, as probative of the intention of the applicant to arm himself with a knife and to commit an armed robbery upon RF on 30 April 2018 (charge 2). That is, the prosecution sought to lead the evidence of the armed robbery, that was the subject of charge 1, and the evidence of the murder, that was the subject of charge 2, in relation to each other to establish the alleged tendency.

29 In its submissions to the trial judge, the prosecution contended that there are 'striking' common features between the two incidents, that are the subject of charges 1 and 2 respectively. In each case, it was submitted, the applicant held himself out to be a woman, 'Nikki', while chatting online with FD and with RF. In those conversations, he discussed the use and purchase of drugs, and he arranged to meet each victim at the same premises, 29 Wilson Street, Berwick, at night. The prosecution also pointed to the similarities of language employed by the user of the 891 telephone service when communicating with each victim. Further, the relevant offender was armed with a knife during both incidents, and the incidents occurred within one week of each other. It was submitted that, by reason of those similarities, the tendency evidence is relevant to establish the identity of the offender in the incident that is the subject of charge 1. Further, it was submitted that the evidence of the offender's behaviour in relation to the armed robbery on FD is demonstrative of a modus operandi, and thus is of significant probative value in respect of charge 2 to establish that the applicant intended to commit an armed robbery on RF in company with CM.

30 In response, counsel for the applicant submitted to the trial judge that there are significant differences between the offending that is the subject of charge 1, and the intended armed robbery, that is alleged to be the basis upon which the applicant has been charged with murder in count 2 on the indictment. In particular, the offence, that is the subject of charge 1, was committed by one offender acting alone. Thus, it was submitted, that offending could not demonstrate the particular tendency relied on by the prosecution, namely, the tendency to enter into an agreement with another to commit the armed robbery that is the subject of charge 2. Counsel also pointed to other differences in the two robberies that took place. In particular, in the second robbery, MV did not state that a knife was produced by the applicant when he first made a demand on her for drugs. In that way, that incident is significantly different to the first incident that is the subject of charge 1, in which the offender immediately produced a knife when making the demand on FD for drugs. Further, it was submitted, the use of the incident, that is the subject of charge 1, as tendency evidence in respect of charge 2, involves a 'bootstrap' or circular form of reasoning.

31 Counsel for the applicant further submitted that if the judge were satisfied that the evidence has significant probative value, the evidence should be excluded because it does not substantially outweigh the prejudicial effect of the evidence. In particular, it was submitted, the jury might place excessive weight on the evidence adduced in respect of charge 1 to reason that the applicant intended to commit the offence that is the subject of charge 2, including the unintended aspect of the death of RF.

32 The judge commenced her ruling by noting that the tendency, that is relied on by the prosecution, is a tendency of the applicant to lure potential victims to 29 Wilson Street, Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knifepoint. That is, the alleged tendency does not relate to, or include, the mode of executing the armed robbery. Rather, it concerns the method by which the intended victim was lured to the premises at which the armed robbery was to take place.[4]

33 The judge considered that the evidence, that was to be adduced in respect of each charge, would 'overwhelmingly' prove that tendency, by reason of the similarities between the contacts made by the applicant with RF on the one hand, and the contacts made by the person who used the 891 telephone service in the name of 'Nikki' with FD.[5] The judge thus concluded that the evidence of the contacts made by the applicant with RF, and the fact that the applicant engaged in strikingly similar conduct by luring RF to a location where the applicant (with another) was armed with a knife and a demand was made for drugs, made it more likely that it was the applicant who executed the armed robbery on FD that is the subject of charge 1.[6]

34 Her Honour further concluded, in respect of charge 2, that the fact that the applicant had, one week previously, used the same technique to lure another man (FD) for the purpose of robbing him of drugs at knifepoint, and who was then robbed of drugs at knifepoint, made it more likely that the applicant intended to demand drugs at knifepoint from RF. In that way, the evidence of the applicant's involvement in the armed robbery, that is the subject of charge 1, is relevant to establish the relevant state of mind necessary for the proof of charge 2, namely, his intention to commit an armed robbery on RF.[7] Her Honour held that the differences between the methods, by which the two armed robberies were executed, do not impact upon the probative value of the tendency alleged by the prosecution.[8]

35 The judge considered that there was such a striking similarity in the conduct of the offender, on each occasion, that the evidence has significant probative value.[9] Her Honour considered that the probative value of the evidence substantially outweighed any prejudicial effect that it may have on the applicant and that appropriate directions at trial would be sufficient to preclude the jury from engaging in impermissible propensity reasoning in respect of the tendency evidence. Accordingly, her Honour held that the prosecution should be permitted to adduce the tendency evidence as specified in the notice.[10]

Tendency evidence - proposed grounds of appeal

36 The applicant relies on three proposed grounds of appeal in the notice of application for leave to appeal. The first two relate to the judge's ruling in respect of the tendency evidence. They are as follows:

1. The Trial Judge erred in finding that the tendency evidence sought to be adduced in the trial of charges 1 and 2 is substantially probative of facts in issue in respect of those charges, set out in the Amended Notice, pursuant to section 97(1)(b) of the Evidence Act 2008.
2. The Trial Judge erred in finding that the probative value of tendency evidence sought to be adduced in the trial of charges 1 and 2, substantially outweighs its potential prejudicial effect on the applicant, pursuant to section 101(2) of the Evidence Act 2008.

37 In support of the first proposed ground of appeal, counsel for the applicant noted that, in considering whether evidence is admissible as tendency evidence, the court must first determine whether the evidence relied on by the prosecution supports the tendency, and, secondly, whether and to what extent that tendency makes more likely the facts constituting the charged offence. In addressing the first question, counsel accepted that the evidence, referred to in the tendency notice, in respect of charge 1, supports the asserted tendency specified in the notice. However, she submitted that the evidence, contained in the notice relating to charge 2, does not support the asserted tendency insofar as it alleges that the applicant had a tendency to act in a particular way, namely, 'for the purpose of robbing at knifepoint'.

38 In particular, counsel submitted, the evidence in the depositions does not establish that the applicant produced or brandished a knife while making a demand in the incident that is the subject of charge 2. Nor does the CCTV footage demonstrate that the applicant brandished a knife on his arrival at 29 Wilson Street, or that he was visibly armed at any stage during his altercation with MV. MV, at the committal proceeding, did not state that the applicant brandished or used a knife during that altercation. Counsel submitted that it was only when the applicant went to the aid of CM, who was then being attacked by RF, that the applicant produced a knife and stabbed RF to the right shoulder with it. The CCTV footage demonstrates that, at that point, RF was repeatedly punching CM.

39 Counsel then addressed the question of the extent to which the tendency evidence could make more probable facts in issue constituting each of the charges against the applicant. Counsel commenced with the question of the admissibility of the evidence on charge 2, as tendency evidence in respect of charge 1. She referred to the proposition, stated by the High Court in Hughes v The Queen, that, where tendency evidence is relied on to establish the identity of an offender, the probative value of that evidence depends on the close similarity between the conduct evidencing the tendency, and the conduct that comprises the offence in question.[11] Counsel for the applicant contended that, in this case, there is no such similarity between the conduct of the offender in the first incident and the conduct of the applicant in the second incident, as there are significant differences between the two incidents, which preclude the evidence being significantly probative of identity on charge 1.

40 In particular, counsel contended, whereas, in the first incident, the offender immediately produced a knife and made a demand on FD, in the second incident the evidence does not demonstrate that the applicant produced a knife and made a demand on MV or RF. Further, the second incident involved the applicant acting in company with another, whereas in the first incident the offender acted alone. Accordingly, there is insufficient similarity between the two incidents to conclude that the evidence, in relation to the second incident, could have significant probative value as tendency evidence in establishing the identity of the offender in the first incident.

41 Counsel for the applicant further submitted that the tendency evidence, to be derived from charge 1, is insufficient to be significantly probative of the intention of the applicant to commit the armed robbery that is a necessary ingredient of charge 2. In particular, it was submitted, as charge 1 constituted a single instance of conduct, there must be a close similarity in the evidence between the two incidents in order to give the claimed tendency significant probative value. In light of the differences between the two incidents, the evidence in respect of charge 1 is not capable of being substantially probative of whether the applicant intended to arm himself and rob RF at knifepoint.

42 In respect of ground 2, counsel for the applicant submitted that, in view of the differences between the two incidents, the probative value of the tendency evidence is low. On the other hand, the tendency evidence would have a substantial prejudicial effect on the right of the applicant to a fair trial. In particular, the evidence would cause a jury to indulge in impermissible propensity reasoning that because the applicant is charged with two broadly similar offences, he is the kind of person who would commit both offences. In addition, the jury would fail to evaluate the differences in the evidence in respect of charges 1 and 2, and would substitute the evidence of what occurred on charge 1 for the deficiencies in the evidence on which the prosecution relies in support of charge 2. Further, it was submitted, the jury might impermissibly use the tendency evidence, on charge 1, to find it is more likely that the applicant agreed with CM that they would commit an armed robbery while brandishing a knife in the second incident, notwithstanding that the applicant's conduct on that occasion was not consistent with such an intention.

43 In response, senior counsel for the respondent contended, in respect of ground 1, that the submissions made by the applicant, based on the differences in the manner in which the armed robbery was executed in each incident, are flawed. The respondent does not seek to rely on the method by which the two armed robberies were committed as part of the tendency that is alleged. Rather, the tendency, relied on by the prosecution, comprises the strikingly similar conduct that was engaged in to set up the encounter with the victim in each incident, in order to create the opportunity to commit an armed robbery on that victim.

44 Counsel further submitted that the fact, that the applicant might not have immediately produced a knife in the second incident, is not relevant to an assessment of the probative value of the relevant tendency. The manner, in which each armed robbery ultimately unfolded, was dependent on the reaction of the particular victim to the unexpected situation which confronted that victim. The second incident unfolded differently to the first incident, because the applicant was not expecting two people to be waiting for him in the second incident, nor was he expecting one of them to recognise him.

45 Counsel for the respondent contended that the tendency of the applicant to act in the particular manner, in which he did to set up each meeting, made it more likely that he was the offender in the incident that is the subject of charge 1. Further, the evidence in respect of charge 1 makes it more likely that when the applicant attended at 29 Wilson Street, Berwick in the second incident, it was his intention to commit an armed robbery there in company with his co-accused. For those reasons, it was contended, the judge was correct to find that in each case the tendency evidence is significantly probative of the particular fact in issue in the charge in question.

46 Counsel further submitted that the kind of prejudice, complained of by the applicant, regularly arises where an indictment contains more than one charge. In those cases, ordinarily, detailed directions to the jury are sufficient to ensure that the jury does not misuse the evidence in a manner that is unfair to the applicant.

47 As earlier mentioned, after discussion with the Court at the commencement of oral argument, the respondent filed and served a notice of coincidence evidence pursuant to s 98(1)(a) of the Evidence Act. That notice relevantly stated:

1. The issues the Prosecution seek to prove by relying on the improbability of coincidence that the accused did a particular act and had a particular state of mind in relation to the following two events, namely that:

2.1. [Edward DEMPSEY] is the offender who committed an armed robbery on [FD] on 23 April 2018; and

2.2. [Edward DEMPSEY] intended to commit an armed robbery on [RF] when he attended at 29 Wilson Street Berwick on 30 April 2018 in possession of a knife.

3. It will be argued that it is improbable that:

3.1. [Edward DEMPSEY] was not the offender who committed the armed robbery the subject of Charge 1, given the conduct of [Edward DEMPSEY]as it relates to Charge 2; and

3.2. [Edward DEMPSEY] attended 29 Wilson Street Berwick on 30 April 2018 with an intention other than to commit an armed robbery, given the conduct alleged in relation to Charge 1.

48 In support of the admissibility of the evidence in respect of each incident as coincidence evidence, senior counsel for the respondent relied on a number of similarities between the two incidents, which, he submitted, made it improbable that the two events had occurred coincidentally. The similarities included: the use of the same mobile telephone number (ending with 891), that was registered in the name of the applicant, to communicate with both victims; the fact that those communications were made interchangeably with the two victims in the period between 19 April and 30 April 2018; the use by the applicant of the false identity 'Nikki' to communicate with the victims; the fact that the applicant told both victims to meet him at the same premises, namely 29 Wilson Street, Berwick; the fact that the express purpose of meeting with 'Nikki' was to enable her to obtain drugs from each victim; the use by the applicant, when communicating with each victim, of similar language; the fact that the applicant was a party to demands being made of both victims when knives were present at each incident; and the fact that the two incidents occurred within one week of each other.

49 Counsel for the respondent submitted that the proof that the applicant was the author of the communications with RF, and that the applicant attended the premises at 29 Wilson Street on 30 April, made it improbable that it was someone else who authored the communications with FD and then committed the armed robbery on him at the same premises seven days earlier. Similarly, it was submitted, the evidence, that the applicant committed the armed robbery on FD after setting up a meeting at 29 Wilson Street, made it improbable that, when the applicant set up the meeting with RF, and attended at those premises on 30 April, his intention was something other than to commit an armed robbery on RF. It was submitted that, in light of the unique similarities of the surrounding circumstances of each event, the evidence of each incident is significantly probative of a fact in issue in relation to the other incident. Counsel contended that appropriate directions to the jury will ensure that there is no risk that the jury will use the evidence improperly or in a manner unfair to the applicant.

50 In response, counsel for the applicant accepted that the evidence on charge 2 is admissible, as coincidence evidence, in respect of proof of the identity of the applicant as the offender in charge 1. In making that concession, counsel added the qualification that the evidence of MV, identifying the applicant as the person who attended the premises at 29 Wilson Street on 30 April, does not relevantly bear on the quality of the photograph identification of the applicant by FD.

51 On the other hand, counsel for the applicant submitted that the evidence on charge 1 is not admissible, as coincidence evidence, to prove the intention of the applicant at the time that he attended the premises at 29 Wilson Street in company with CM on 30 April. Counsel commenced her submissions, on that aspect of the case, by referring to the varying manner in which the prosecution has contended that the evidence on charge 1 is admissible in relation to charge 2. She noted that in paragraph 2 of the notice of coincidence evidence, it is stated that the evidence is relied on to prove that the applicant intended to commit an armed robbery on RF when he attended the premises at Wilson Street. In paragraph 4, the notice sets out, as a fact in issue in relation to charge 2, whether the applicant and the co-accused intended to commit an armed robbery on RF when they attended at the Wilson Street premises on 30 April. In the respondent's outline of submission, the relevant fact in issue, in relation to charge 2, is specified as whether the applicant had a particular state of mind when he attended the Wilson Street premises on that date, 'namely an agreement to commit an armed robbery with his co-accused [CM]'. In pointing to those differences, counsel noted that, as a matter of principle, it is necessary that the prosecution identify, with precision, the particular fact in issue, to which it is said that the coincidence evidence is relevant.

52 Counsel further submitted that, in any event, the evidence on charge 1 is not admissible as coincidence evidence on charge 2 to prove the intention of the applicant when he attended the premises at 29 Wilson Street on 30 April in company with CM. Counsel referred to the differences between the circumstances in which the first incident occurred as compared with the circumstances in which the second incident took place. Counsel noted that, in a case such as this, in which the prosecution seeks to rely on the one incident that was the subject of charge 1 as coincidence evidence in respect of charge 2, it is necessary that there be a close or striking similarity between the two events, in order that the evidence in relation to the first event would have significant probative value in establishing the intention of the applicant when he attended the Wilson Street premises on the second occasion on 30 April. In light of the differences between the manner in which the two events took place, the evidence as to the armed robbery, on 23 April, could not be characterised as having significant probative value as coincidence evidence in respect of the intention of the applicant when he attended the Wilson Street premises on 30 April in company with CM.

53 Counsel further contended that, if the evidence of the first incident does have significant probative value for the purpose of s 98(1) of the Evidence Act, such probative value would be outweighed by the prejudice to the applicant if the prosecution were permitted to rely on the evidence of the first incident as coincidence evidence. In particular, she submitted that, for the same reasons advanced in respect of the tendency evidence, there would be a significant risk that the jury would substitute the evidence on charge 1, for the evidence on charge 2, and be distracted from evaluating the critical differences between the two events, in evaluating the intention of the applicant at the time that he attended the Wilson Street premises on 30 April.

54 Before considering the principles that apply to coincidence and tendency reasoning, it is first necessary to identify the elements of the offence that is the subject of charge 2. As mentioned, under that charge, the applicant is charged with statutory murder contrary to s 3A(1) of the Crimes Act, on the basis that CM and the applicant were acting together pursuant to an agreement to commit an armed robbery on RF, during the course of which RF was killed. While the prosecution does not allege, specifically, that it was the applicant who struck the fatal blow that resulted in the death of RF, it is contended that he was criminally involved in the armed robbery, pursuant to s 323(1)(c) of the Crimes Act, and, as such, guilty of murder under s 3A(1) of the Act.

55 In order to establish the guilt of the applicant on charge 2, the prosecution must therefore prove (inter alia) that the applicant was party to an agreement with CM to commit an armed robbery on RF, that that agreement remained in existence at the time at which the applicant and CM attended the premises at 29 Wilson Street on the evening of 30 April 2018, that the applicant participated with CM in the intended armed robbery in some way, that the applicant intended to commit the armed robbery on RF, and that RF was killed by an act of violence done in the course or furtherance of the armed robbery. Relevantly, the prosecution must establish that the applicant intended to commit the armed robbery, both at the time of the agreement, and at the time of the second incident.[12]

56 Section 97(1) of the Evidence Act relevantly provides that evidence, of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless (inter alia) the Court thinks that that evidence will, either by itself, or having regard to other evidence adduced, or to be adduced, by the party seeking to rely on the tendency evidence, have 'significant probative value'. Section 101(2) further provides that, in a criminal proceeding, tendency evidence cannot be used against an accused person, unless the probative value of that evidence 'substantially outweighs any prejudicial effect it may have on the defendant'.

57 Tendency evidence is a form of circumstantial evidence. A party, relying on that evidence, seeks to establish that, because a person has or had a tendency to act in a particular way, or to have a particular state of mind, it might be inferred that that person acted in the same way, or had the same state of mind, on the occasion of the offence which the person is alleged to have committed.

58 In RWC v The Queen, Simpson J described the reasoning process, involved with tendency evidence, in the following way:

Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.[13]

59 Where tendency evidence is sought to be adduced, it is necessary to address four questions, namely:

(1) Whether the evidence, that is sought to be adduced, supports the particular tendency that is sought to be relied on.

(2) Whether that particular tendency itself has probative value; that is, whether the tendency evidence is capable rationally of affecting the assessment, by the relevant tribunal of fact, of the probability of a fact in issue.

(3) Whether, as such, the tendency evidence has significant probative value in respect of that fact in issue.

(4) Whether the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the accused person.[14]

60 In addressing the first question, it is important that the particular tendency, that is intended to be proven and relied on, be defined with some precision. Equally, in addressing the second question, it is necessary that the issue, to which that tendency evidence is intended to be directed, be specifically identified and defined. Where the tendency, in question, and the issue to which it is directed, are clearly identified, the question of the admissibility of that evidence is clarified. Conversely, the less precision in their identification, the more difficult it is likely to be to determine whether the evidence has significant probative value, and to determine whether the probative value of the evidence substantially outweighs any prejudicial effect it might have on the right of the applicant to a fair trial. More importantly, where the tendency evidence is admitted, there is less risk of its misuse by the jury.

61 In Hughes, the High Court noted that the text of s 97(1)(b) of the Evidence Act does not include a reference to similarity, or to the concepts of 'underlying unity', 'pattern of conduct' or 'modus operandi'. The High Court held that the omission of those familiar common law concepts (which underpinned the admissibility of similar fact evidence) reveals a legislative intention that the admissibility of evidence under s 97(1)(b) is not limited to evidence which contains those features.[15] The Court further noted that the probative value of the tendency evidence, that is sought to be relied on, would depend on the nature of the fact in issue which the tendency evidence is adduced to prove. Thus, the plurality stated:

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.[16]

62 In the present case, the prosecution has sought to rely on tendency evidence for two specified purposes. First, it has sought to rely on the admitted participation by the applicant in the text messages sent by 'Nikki' to RF, his attendance at the premises at 29 Wilson Street, Berwick on 30 April, and the incident that occurred at those premises on that date, to establish, on charge 1, that the applicant was the offender who committed the armed robbery on FD on 23 April 2018. Secondly, the prosecution seeks to rely on the commission by the applicant of that armed robbery on FD, to establish, on charge 2, that the applicant armed himself with a knife and attended at those premises on 30 April 2018 with the intention of participating in an armed robbery that was to be committed on RF at the premises on 30 April 2018.

63 In essence, the prosecution seeks to rely on a number of features of similarity between the two incidents for the purpose of establishing each of those tendencies. In that way, the reasoning, that is sought to be relied on by the prosecution, bears a close relationship to the reasoning that is the foundation for the admissibility of coincidence evidence under s 98 of the Evidence Act. Conceptually, the form of reasoning employed in respect of evidence admitted under s 97 is different to, and distinct from, the form of coincidence reasoning that is the foundation of the admissibility of evidence under s 98. In a case such as this, where the reasoning that is sought to be relied on is based on similarities between two events, there is some 'overlap' between the two forms of reasoning.[17] Nevertheless, in determining the issues raised on this application, it is important to keep in mind the differences between the two forms of reasoning which the prosecution seeks to rely on.

64 Section 98(1) of the Evidence Act provides:

(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.

65 As with tendency evidence, s 101 of the Act provides that 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'.

66 Coincidence evidence (and tendency evidence) is an exception to the general principle that evidence of an earlier incident or event, involving or relating to an accused person, is not admissible to prove an element of an offence charged against the accused. The underlying rationale for the exception, provided by s 98, resides in the significant improbability that the two events occurred coincidentally. As this Court stated in CW v The Queen:

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.[18]

67 In a number of decisions involving the application of s 98 of the Evidence Act, this Court has applied the principles stated in the judgment of Winneke P in R v Papamitrou.[19] That case concerned the application of s 398A of the Crimes Act. Notwithstanding the differences between that provision and s 98 of the Evidence Act, it has been considered that the principles, described by Winneke P, are relevantly applicable to the determination of the admissibility of evidence that is sought to be relied on as coincidence evidence.

68 In Papamitrou, Winneke P (with whom Ormiston and Buchanan JJA agreed) stated:

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 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 ... 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.[20]

69 Section 98(1)(b) provides that the improbability of coincidence, between the two incidents relied on, must be such as to invest the coincidence evidence, sought to be relied on, with 'significant probative value'. It is undesirable to substitute synonyms for the adjective 'significant'. As observed in CV v DPP, the evidence must, at the least, be capable of rationally affecting the probability of the existence of the fact in issue to an extent 'greater than required for mere relevance'.[21]

70 In CGL, the Court specified four questions which need to be addressed in relation to the admissibility of coincidence evidence in the following terms:

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?

1. 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?
2. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?[22]

71 As in the case of tendency evidence, it is necessary to approach each of those questions, with a degree of precision. In particular, it is necessary to identify clearly the specific fact in issue to which the coincidence evidence is directed. In addition, it is necessary to identify how the particular similarities between the two events, that are relied on, are such as to invest the coincidence evidence, that is sought to be adduced, with significant probative value.

72 In the present case, counsel for the applicant has placed substantial reliance on particular differences in the manner in which the two incidents unfolded at the premises. In Selby v The Queen, the New South Wales Court of Criminal Appeal in discussing the relevance of differences between the two events that are sought to be relied on for the purpose of coincidence reasoning, made the following relevant points:

(1) The questions posed by ss 98 and 101 of the Evidence Act turn on reasoning based on the improbability that something was a coincidence; that reasoning is not necessarily displaced by the fact that two (or more) events may bear some dissimilarities, as events will always be dissimilar in some respects.[23]

(2) The question is whether the similarities between the two events are such that coincidence is improbable as an explanation.[24]

(3) In that context, the question is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning, by undercutting the improbability of something being a coincidence.[25]

73 In analysing the competing submissions in respect of grounds 1 and 2, it is convenient, first, to consider whether the evidence, that is to be adduced on charges 1 and 2 respectively, might have significant probative value, as coincidence and further or alternatively tendency evidence, in respect of a relevant fact in issue on each of those charges, as required by s 97(1)(b) and s 98(1)(b) of the Evidence Act. We will then consider whether, in the event that the evidence has significant probative value in that way, that probative value substantially outweighs any prejudicial effect that the evidence might have for the purpose of s 101(2) of the Act.

74 As we have stated, in determining the admissibility of evidence as tendency or coincidence evidence, it is necessary, first, to identify, with some precision, the fact in issue, in each charge, in respect of which the prosecution seeks to rely on tendency and coincidence evidence.

75 In that respect, it is clear that the respondent relies on the evidence in respect of charge 2, as coincidence evidence or tendency evidence, in proof of the identity of the applicant as the person who committed the offence that is alleged in charge 1. On the other hand, as counsel for the applicant has pointed out, there is less clarity about the precise fact in issue, in charge 2, to which the prosecution seeks to direct the evidence in charge 1 as coincidence or tendency evidence. Nevertheless, as we have discussed, in order to prove the guilt of the applicant on charge 2, the prosecution must prove that the applicant, at the times material to that charge, intended to participate in an armed robbery on RF at the premises at 29 Wilson Street, Berwick. It is accepted that that intention must be proven to have existed at the time at which the applicant agreed with CM to commit the armed robbery on RF, and at the time at which the applicant (with CM) attended at the Wilson Street premises on 30 April 2018.

76 As a preliminary observation, plainly the prosecution would not be able to use the evidence on charge 1, to prove the relevant intention of the applicant on charge 2, unless the jury is first satisfied that the applicant is the person who committed the armed robbery that is the subject of charge 1. Strictly, under s 61 of the Jury Directions Act 2015, it might not be necessary for the prosecution to prove that fact beyond reasonable doubt for that purpose.[26] However, if directions were given to the jury, regarding the use that might be made of the evidence on charge 1 as coincidence or tendency evidence on charge 2, by reference to a standard of proof lower than the criminal standard, that would confuse, and would be calculated to undermine, the criminal standard of proof that must be applied by the jury for it to convict the applicant on charge 1. Accordingly, in order that the evidence on charge 1 be admissible in proof of the intention of the applicant to commit the offence which is the subject of charge 2, it would be necessary for the jury, first, to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 1.

77 We turn, then, to consider the issue of the admissibility of the evidence on charge 1 and the evidence on charge 2, respectively, as coincidence and/or tendency evidence to prove a fact in issue on the other charge. We will commence with an analysis of the question whether the evidence on charge 2 has significant probative value, as tendency or coincidence evidence, in respect of the fact in issue on charge 1, namely, whether the applicant was the person who committed the offence, that is the subject of charge 1.

78 In that respect, counsel for the applicant has accepted that the evidence on charge 2 is admissible as coincidence evidence to prove the identity of the applicant as the offender in charge 1. Plainly, that concession by counsel for the applicant is correct. Our reasons for that conclusion can be simply stated.

79 It is admitted that the applicant sent each of the text messages using the 891 telephone service to RF, and that the applicant, consequent on those messages, attended the premises at 29 Wilson Street on 30 April 2018 (in company with CM). As a minimum, it would be permissible to use the evidence, that the applicant sent those messages to RF, in order to prove that it was the applicant who sent very similar messages to FD in order to set up a meeting with him at the same premises.

80 Between 19 April and 30 April, the 891 telephone service communicated with both FD (between 19 April and 23 April) and RF (between 22 April and 30 April). On 22 April, it communicated with both FD and RF in close succession. In each of those communications, the applicant used the pseudonym 'Nikki'. He employed similar language when communicating with each of FD and RF. On the day of each incident, FD and RF respectively received an instruction, in almost identical terms, as to where to park and attend at the Wilson Street premises.

81 In the circumstances, it is most improbable that, as a matter of coincidence, the person, who attended at the premises on 23 April and robbed FD, was someone different to the person (the applicant) who attended at the same premises seven days later (on 30 April) and participated in the incident that occurred there, making demands (as he did) for money and drugs. The improbability of coincidence resides in the identity of specific common factors between the two incidents, namely: text messages were sent to each victim from the same number, using the same language and setting up a meeting at the same address; the two incidents were one week apart; and text exchanges occurred interchangeably with the two victims on 22 April. FD was robbed of drugs at knifepoint at that address on 23 April; it would be highly improbable that someone other than the applicant committed that offence, given that it was the applicant who attended the same premises in possession of a knife and made demands on MV (for money and drugs) just one week later. For those reasons, the evidence on charge 2 has significant probative value, as coincidence evidence, in proving that the applicant was the offender in respect of the offence that is the subject of charge 1.

82 The same evidence is also sufficient to establish a relevant tendency of the applicant, namely, to use the same pseudonym, with similar language, and similar instructions, to set up a meeting between himself and a stranger at the premises at 29 Wilson St. The closeness of the similarities is sufficient to invest that tendency with significant probative value in respect of the identity of the offender for the purpose of charge 1.

83 The next question is whether the evidence on charge 1 has significant probative value, as coincidence evidence or tendency evidence, in proof of the requisite intention of the applicant to engage in an armed robbery on RF for the purpose of charge 2. As we have discussed, the evidence on charge 1 might only be used by the jury, for that purpose, if the jury is first satisfied, beyond reasonable doubt, of the guilt of the applicant on charge 1.

84 The starting point, for that analysis, is that there are a number of striking similarities between the manner in which (on the prosecution case) the applicant set up the meeting with FD on 23 April, and the manner in which he contemporaneously set up the meeting with RF on 30 April. In particular, between 19 April and 23 April, the 891 telephone service communicated with FD. Between 22 April and 30 April the applicant (on number 891) communicated with RF. On 22 April, the 891 telephone service communicated, interchangeably, with FD and RF. Each communication was in the name of a female 'Nikki'. The purpose of the communications was to set up a meeting at the same premises, 29 Wilson Street. The person, who employed the pseudonym 'Nikki,' used similar language with each of the two victims, such as addressing the particular victim as 'babe' and 'hun'. In the communications, Nikki proposed to purchase drugs from the victim. Nikki also suggested that there might be something more. On 22 April at 10.56 pm, communicating with RF, Nikki said 'we should be able to get something going between us'. On the same date, at 11.24 pm, Nikki communicated with FD 'hope you're going to stay and chill with me for a awhile'.

85 On the day of each incident, the victim received an almost identical instruction as to where he was to park and attend at the Wilson St premises. On 23 April, when FD arrived at the premises, and asked where he should park, the 891 telephone service replied 'babe where I live is a complex for women domestic violence ... when you get here hun just pull up in the car park and come to the front doors and I'll buzz you in'. Almost identically, on 30 April, at 7.47 pm, the applicant sent a message to RF (via a different number ending 385) as follows:

Where I live is a complex for domestic violence babe so I'll get u to park out the front and come to the front doors ... I'll buzz you in when you get here hun ...

86 In those circumstances, it is most improbable that, as a matter of coincidence, although the applicant set up FD for a meeting at 29 Wilson Street, and attended the meeting there on 23 April with a knife, intending to commit an armed robbery on him for drugs, nevertheless, on 30 April, he set up RF, using the same language and the same methodology for a meeting at 29 Wilson Street, and attended there with a knife, but for some other purpose or with some other intention. That is, it is highly improbable that it was a matter of coincidence that, having set up such a meeting in such a way with FD in order to rob him, he set up the meeting with RF one week later, using the same methodology, but with a different intention.

87 Further, there were a number of close similarities between the manner in which the two incidents, on 23 April and 30 April respectively, commenced. Those similarities make it even more improbable that, as a coincidence, the applicant attended the Wilson Street premises on 30 April, for a purpose that was different.

88 In the incident, that was the subject of charge 2, the person who communicated with the victim (that is the applicant) was the same person who attended at the same premises, and he did so walking down the driveway towards RF after RF and MV had arrived there. Similarly, the offender in charge 1 approached FD down the driveway after FD had reached the front door of the premises.

89 In each of the two incidents there were common features. In particular:

(b) There was an immediate act, or threat, of violence at the time of the making of that demand:

• in the first incident (23 April), according to FD, after he arrived at the premises at 29 Wilson Street, and the offender walked towards him, the offender demanded that he give him what was in his pocket, and produced a knife. The offender then took drugs from FD and departed.
• On 30 April (charge 2), according to her first statement (1 May), MV stated that when the applicant approached her, he said to her 'Come on give it, where is it'. In that first statement she said that the applicant then had a knife on him. In a second statement, she said that the applicant approached her, punched her, and kept repeating 'give it to us'. In that statement, MV did not allege that the applicant, at that stage, held or brandished a knife. In her evidence in the committal proceeding, she said that she did not at that stage see him holding a knife. However, she said that the applicant said to her 'give us what you've got, give us your money, give us the drugs' and punched her in the mouth. It was shortly after that that she saw him attacking RF with the knife.

(c) On each occasion, the applicant had a knife with him which, at some stage in the incident, he used for aggressive purposes.

90 The differences between the two incidents do not detract from the improbability of coincidence as being an explanation exculpatory of the applicant in respect of charge 1. On the second occasion - 30 April - the applicant was not expecting RF to attend in company with someone else, or with someone he knew (MV). In that way, the offence unravelled in a manner different to the offence in the first charge. As the prosecution has contended, the specific manner in which each incident transpired does depend, at least in part, on the reaction of the victim on being confronted. The common feature, in each case, is that the offender had a knife on 23 April, and the applicant had one on 30 April, and on each occasion the offender/the applicant produced and used that knife for aggressive purposes, albeit at different stages of the incident and in different circumstances that unravelled due to the reactions of the victims.

91 In the course of her skilful submissions, counsel for the applicant placed substantial reliance on the circumstance that, on the evidence, it appears that the applicant did not produce his knife or brandish it while making a threat, when he arrived at the Wilson Street premises on the second occasion on 30 April. As we have noted, the evidence of MV in the committal hearing was that she did not see the applicant hold a knife until he went to the aid of CM who was struggling with RF.

92 However, for the reasons we have already set out, on analysis, that circumstance does not relevantly detract from the force of the evidence, of the armed robbery committed on FD, as coincidence or tendency evidence in support of proof of the relevant intention of the applicant when he attended the Wilson Street premises on 30 April. At the risk of repetition, when the applicant attended the premises on that occasion, he had a knife with him, CM was holding his knife, the applicant made a demand on MV, and at the same time CM approached RF while holding his knife. In that context, having set up a meeting with FD in the same manner in which he set up the meeting with RF, and having robbed FD at the same premises at knifepoint just one week earlier, the fact that the applicant did not, immediately on arrival at the Wilson Street premises on the second occasion, produce his knife, does not logically detract materially from the force of the evidence of the first incident as coincidence and tendency evidence relating to the intention of the applicant when he attended at the Wilson Street premises on 30 April.

93 For those reasons, the evidence on charge 1 has significant probative value, as coincidence evidence, on charge 2, in proof of the intention of the applicant to engage in an armed robbery on RF at the premises at 29 Wilson Street, Berwick.

94 In addition, we consider that the evidence on charge 1 also has significant probative value, as tendency evidence, in respect of that fact in issue in charge 2. In particular, the applicant acted in a particular manner in respect of the FD meeting: he set it up and attended there with a particular intention, to rob him of drugs at knifepoint. That evidence bespoke a tendency or inclination of the applicant to act in a particular way, namely, to set up a meeting with victims at those premises with the intention to rob them in that way. He used the same methodology to set up the meeting with RF, and acted in a similar way when RF and MV arrived - making a demand of MV, and being armed with a knife (albeit that he did not immediately produce the knife).

95 In that way, the evidence may be the basis of the inferential reasoning involved with tendency evidence, namely, that on the first occasion the applicant acted in a particular manner with a particular state of mind, so that it may be inferred that when, one week later, he acted in the same or a similar manner, he had the same state of mind.[27]

96 Based on the circumstances set out above, the evidence concerning the first incident, of itself, has significant probative value, as coincidence evidence and as tendency evidence, in respect of the applicant's intention when he attended the premises at 29 Wilson St on the occasion of the second incident. In addition, there is other evidence pointing to the applicant's intention on that second occasion. He attended the premises armed with a knife. When he approached MV, he immediately made a demand for money and drugs. On the evidence, there was no other reason for the applicant to attend the premises at that time. In that context, the evidence, as to the applicant's involvement in the armed robbery on FD, has significant probative value as to his intention when he attended the same premises, one week later, both as coincidence evidence and as tendency evidence.

97 In those circumstances, we consider that the evidence on charge 1 does have significant probative value, as coincidence evidence and as tendency evidence, in respect of the proof of the intention of the applicant, in charge 2, to participate with CM in an armed robbery on RF when they attended the premises at 29 Wilson Street, Berwick on 30 April.

98 The next question is whether the probative value of the evidence, on charge 1, as tendency evidence and coincidence evidence, substantially outweighs any prejudicial effect it may have on the applicant, for the purpose of s 101(2) of the Evidence Act.

99 In that respect, the principal matter, relied on by counsel for the applicant, is that the jury, in considering the issue of the intention of the applicant for the purpose of charge 2, might give disproportionate weight to the evidence in respect of charge 1, particularly in circumstances in which there is little other evidence as to the intention of the applicant to commit an armed robbery on RF when he attended at the Wilson Street premises on 30 April. Counsel contended that, in those circumstances, the jury may substitute the evidence as to the applicant's intention on charge 1 for the lack of evidence of his intention in relation to charge 2.

100 In that respect, as we have discussed, there is some evidence, apart from that on charge 1, as to the intention of the applicant when he attended the premises at Wilson Street on 30 April. In particular, the applicant and his co-accused, CM, each attended the premises armed with a knife. There was no reason why it was necessary for CM to attend in addition to the applicant. When the applicant approached MV, he immediately made a demand, in intimidatory tones, for money and drugs. At the same time CM approached RF while holding his knife. Those facts, taken together, would form a sufficient foundation for an inference as to the applicant's intention when he attended the premises on 30 April. Thus, contrary to the submission made by counsel for the applicant, there is not a vacuum of evidence as to the applicant's intention on that date, apart from the evidence on charge 1.

101 Further, we do not consider, in any event, that there is a meaningful risk that the jury would engage in the impermissible reasoning described by counsel for the applicant. If the evidence on charge 1 were admitted as coincidence evidence or tendency evidence, the trial judge would give directions to the jury as to the type of reasoning upon which the prosecution relies for those purposes. Such directions would be adequate to outline to the jury the form of reasoning involved in the use by it of the evidence under charge 1 as coincidence evidence or tendency evidence. Further, the judge would give directions to the jury against the impermissible uses of the evidence suggested by counsel for the applicant. The experience of the courts is that appropriate directions, in those terms, are meaningful and readily comprehensible, and that juries, when properly directed, are conscientious in adhering to them.

102 For those reasons, we are satisfied that the probative value of the evidence on each of charges 1 and 2 respectively, as coincidence and tendency evidence, in respect of the other charge, substantially outweighs any risk of unfair prejudice to the applicant.

103 It follows that the evidence under charge 2 may be used as coincidence and tendency evidence in proof of the identity of the applicant as the person who committed the offence that is the subject of charge 1, and, conversely, the evidence, on charge 1, may be used as coincidence and tendency evidence in proof of the requisite intention of the applicant under charge 2.

104 We add to the foregoing analysis that, in light of our conclusion that the evidence on charge 2 is admissible, as coincidence evidence, in proof of the issue of identity on charge 1, it would not seem necessary that the prosecution also seek to rely on the evidence on charge 2 as tendency evidence in proof of the same fact in issue. While it is a matter for the prosecution, nevertheless we would suggest that it give consideration to not relying on the evidence on charge 2 as tendency evidence in respect of the proof of identity on charge 1. We would also suggest that the prosecution give consideration, similarly, to not relying on the evidence on charge 1 as tendency evidence in proof of the requisite intention of the applicant on charge 2. Unless it is considered that there may be some additional force or value to the evidence, being used both as coincidence and tendency evidence, it would be desirable that the prosecution only rely on the evidence for one purpose, in order to simplify the directions required to be given to the jury, and to simplify the task of the jury.

105 For the foregoing reasons, grounds 1 and 2 of the application do not succeed.

Ground 3 - the photoboard identification evidence

106 Ground 3, of the application, is directed to the ruling by the judge that the photoboard identification by FD of the offender in respect of charge 1 is admissible.

107 At the request of the police, FD attended Werribee Police Station on 12 July 2018. He was told by Detective Sergeant Williams that he would be asked to look at a group of photographic images, that he should not conclude that that group of photographs contained the image of the person, who he was asked to identify, and that he was not obliged to identify anyone or anything. He was also told that the images, that were shown to him, should not influence his judgement.

108 FD was then handed a manila folder. Having viewed the images, he said that he was 'pretty confident' that he did not recognise any of the persons depicted in photographs on the left hand side of the photoboard as being the offender. When asked to recite the numbers of those persons, he said 'numbers 1, 2, 5, 6, 9, 10. I'm ninety-nine per cent confident it is none of them'.

109 FD then continued to view the photoboard. He said 'unfortunately I'm not going to be one hundred per cent pick out one of them. There are four of them that I've picked which it may be one of these four'. When asked to identify which of the four images he was referring to, FD responded 'numbers 3, 4, 8 and 11'. When asked if there was anything he wished to say about the four images, FD responded 'I really hope that one of them is right'. Detective Sergeant Williams then asked FD 'what features look familiar to any person whom you may recall?'

I don't know if it is any feature. It's sort of four different people. Between the four they don't have similar features, but they look alike. The more I look at it, and I'm not sure, but number 8 is a bit more like it. Not sure. Not one hundred per cent. After it, I can't be definite. Number 8 is more where I'm going with it.

111 Detective Sergeant Williams then asked FD 'who does number 8 remind you of?', to which FD responded: 'The person who held the knife up at me'. It is common ground that the person depicted in photograph number 8 is the applicant.

112 Counsel for the applicant submitted that the probative value of the photoboard identification evidence is low, and that it is outweighed by the danger of unfair prejudice to the applicant. Accordingly, the evidence should be excluded under s 137 of the Evidence Act.

113 Counsel submitted that the probative value of the evidence is low for four reasons. First, FD had to be contacted three times by the police before he was prepared to make a statement. Secondly, on the second occasion on which he was contacted, FD was told that he was being asked to assist in a homicide investigation, in order to identify the suspect in that investigation. Thirdly, FD asked the police if anything would happen to him if he admitted possession of drugs, and he felt that by cooperating with the police he might thereby improve his chances of not being charged with such an offence. Fourthly, FD said that his identification of the applicant's photograph was 'less than one hundred per cent sure'.

114 Counsel further submitted that the factors, that reduce the probative value of the identification evidence by FD, are not matters that a jury can readily assess and understand. Thus, it was submitted, the jury might give excessive weight to the evidence, and fail to take into account, adequately, cautionary directions given to them by the trial judge in that respect.

115 In ruling that the evidence is admissible, the judge noted that FD had correctly identified the applicant as the offender who robbed him on 23 April 2018. The fact that he was not one hundred per cent sure of that identification did not mean that he was 'dangerously unsure'. There was no suggestion that FD was pressured in any way to make a final selection. The fact that FD might have been motivated to participate in the identification process, in order to avoid being charged with drug offences, did not logically affect the quality of the selection that he made as a result of participating in that process. Before he undertook the photoboard identification, FD had not seen an image of the applicant in circumstances in which he had been identified as a suspect in the homicide. Accordingly, the judge concluded, the probative value of the evidence is high.[28]

116 Her Honour also considered that there is no real risk that the jury would misuse the evidence in an unfair way. The circumstances, in which FD came to participate in the photoboard process, are capable of being fully explored before the jury, and the jury would be capable of giving the evidence such weight as is appropriate taking into account the directions which would be given to it relating to the potential unreliability of identification evidence.[29]

117 In support of the present application, counsel for the applicant effectively repeated the submissions that she had made to the trial judge. Counsel noted that FD had been reticent to make a statement about the events that are the subject of charge 1. The informant had pressed him to do so, by telephoning him on three occasions, and disclosing to FD that the information that was sought from him related to a suspect in a homicide investigation. In the course of assisting the police, FD asked if anything would happen to him as a result of his admission to the possession of drugs. He felt that if he cooperated with the police, that might improve his chance of not being charged with a drug offence. Further, it must have been clear to FD that the individual, who was the subject of the homicide investigation, was included in the images he viewed. There was, therefore, a danger that that information influenced him in identifying a person from the photoboard as the offender.

118 Counsel further pointed out that in his first police statement, FD had only given a vague description to the police of the offender. When he viewed the photoboard, he said he could not be 'one hundred per cent' sure, and he narrowed his choice to four people, who (he said) could have been the perpetrator.

119 It was therefore contended that the quality of FD's identification of the applicant is vague and unreliable, so that its probative value is low. Counsel submitted there is a risk that the jury would not appreciate the nature of the prejudice to the applicant, if the evidence were introduced, and that the jury would not properly take into account the relevant factors in evaluating the weight that should be given to the evidence.

120 In response, senior counsel for the respondent contended that the matters, relied on by counsel for the applicant, relate to the credibility and reliability of the photoboard evidence. In that respect, this Court in DPP v Hague[30] has held that, as a result of the decision of the High Court in IMM v The Queen,[31] the credibility and reliability of such evidence are matters for the jury and not for the judge, in undertaking an analysis under s 137 of the Evidence Act. Taking the photoboard identification evidence at its highest, it is highly probative in respect of the identity of the offender in charge 1. Further, the applicant has not identified any unfair prejudice, arising from the admission of that identification evidence, that cannot be cured by appropriate directions given to the jury. The jury will have the benefit of watching the video of the identification process, and thus it can make its own assessment on the quality and nature of that process, and the outcome of it.

121 Section 137 of the Evidence Act requires a judge to exclude evidence in a criminal proceeding, if the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused. The phrase 'probative value of evidence' is defined, in the dictionary to the Evidence Act, to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

122 In IMM, the High Court held that, in assessing the probative value of evidence, for the purpose of s 137 of the Evidence Act, the judge must proceed on the basis that the jury will accept the evidence in question as both credible and reliable. In their joint judgment, French CJ, Kiefel, Bell and Keane JJ, stated:

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.[32]

123 Their Honours further observed that, in assessing the probative value of the evidence, it is necessary for the judge to take into account the relevant surrounding circumstances. They stated:

It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.[33]

124 The application of those principles, to a case involving identification evidence, was considered by this Court in Hague. In that case, the accused was charged with murder. It was alleged that he fatally stabbed the deceased in 1995. The prosecution sought to adduce evidence from a witness who was standing next to the deceased when he was killed. The critical issue in the trial was identification. For a period of almost twenty years, the witness did not purport to identify the accused as the person who had killed the deceased. At the time of the killing, he did not know the accused. On the day of the killing, he only gave a brief description of the offender. At two subsequent identification parades (in each of which the accused participated) he failed to identify the accused. In October 1996, the accused was first charged with the murder. That charge was later the subject of a nolle prosequi. In the intervening years there was a substantial degree of publicity given to the case.

125 Ultimately, in October 2017, the witness made a statement implicating the accused. The evidence, which was proposed to be adduced from the witness, was that he had in fact recognised the accused at the first identification parade, but that he did not say so at the time. The trial judge made a preliminary ruling excluding the evidence of the witness pursuant to s 137 of the Evidence Act. The judge held that, taken at its highest, the probative value of the evidence was 'not very high at all', and that it was outweighed by significant prejudice to the accused if it were to be admitted.[34] On appeal by the Director, this Court, applying the principle stated in IMM, reversed that decision, holding that, taken at its highest, the evidence of the witness was 'of high probative value'.[35]

126 In reaching that decision, the Court referred to the passage from IMM, to which we referred, that requires a court to take into account the circumstances of the evidence, such as an identification made by a witness in foggy conditions and poor light. The Court stated:

This is not a case of that kind. Here what is said to make T's evidence 'weak and unconvincing' is not the circumstances in which he was able to observe the assailant, nor the lapse of time before T first identified KH. As has already been noted, T was standing next to S and saw the attacker at close quarters. He will say that he recognised KH at the first identification parade, held within a matter of weeks, but did not say so at the time.

Instead, the submissions for KH - and the decision of the judge - rest on what are said to be the 'inherent contradictions' and 'internal inconsistencies' between T's successive statements to police. Those criticisms go to the credibility and reliability of the evidence, the very matters which the majority in IMM said must be assumed for the purposes of the s 137 assessment. Nothing in the 'foggy conditions' example which their Honours gave modifies that requirement.

Consistently with IMM, therefore, his Honour was obliged to proceed on the assumption that the jury would accept as credible and reliable T's proposed evidence that KH is the person he saw stab S. T will say that, at the time of the stabbing, he did not know KH but recognised him as the person who had been sitting in the driver's seat of a motor vehicle which he (T) and others had earlier attacked in retaliation for an attack on S. There is other evidence that KH was in fact the person sitting in the car at that time.

Plainly enough, given where T was standing when the fatal attack took place, and given what he will say about when he first identified KH, his evidence of identification - taken at its highest - is of high probative value. Whether it will in fact be accepted by the jury is a matter for trial. There will, inevitably, be extensive cross-examination of T, and all of the weaknesses and inconsistencies in the accounts he has given will doubtless be highlighted, in order to undermine his credibility and reliability in front of the jury. But, for the reasons given, it was an error of law for his Honour to base his decision on his own assessment of T's credibility and reliability.[36]

127 Applying those principles, it is clear that, subject to two exceptions, the factors relied on by counsel for the applicant do not, and may not, impact on an assessment by the Court of the probative value of the identification evidence of FD. The circumstances that FD was reluctant initially to participate in the identification process, that he only participated after having received three requests from the informant to do so, and that he was concerned that he himself might be charged with drug offences arising out of the circumstances of the first incident, are matters that are essentially relevant to the credibility of FD as a witness, and, perhaps, also to the reliability of his evidence. The principles stated by the High Court in IMM, and applied by this Court in Hague, make it plain that those factors may not be taken into account in assessing the probative value of the identification evidence of FD for the purpose of s 137 of the Evidence Act.

128 On the other hand, applying the principles stated in IMM, it is appropriate for the Court, in evaluating the probative value of that evidence, to take into account, first, the circumstances in which FD observed the person who perpetrated the armed robbery on him, and, secondly, the precise nature of the identification undertaken by FD when shown the photoboard.

129 As to the first matter, FD did not previously know the person who committed the armed robbery on him. It would appear that the incident was of quite short duration. It occurred at about 1.30 am. His evidence, at committal, was that it was 'pretty dark', the incident occurred on the front porch of the premises, and it was 'lit enough'. In his statement to the police (which was made two months later), he described the offender as follows:

I would describe him as around late 20s or early 30s, five foot eleven inches, he had red coloured facial hair, Caucasian, he was average build but his jumper made him look bigger. His face looked drawn and looked like he was unhealthy. He was wearing a black jumper and a hood over his head, grey tracksuit pants and runners.

130 As to the second matter, the identification process undertaken by FD had its inherent limitations, which are common to most photographic identifications. Those limitations are ordinarily the subject of an appropriate direction given to the jury. In particular, they concern the 'rogues gallery effect' which was presented to the identifying witness, the fact that a photograph is only two dimensional, and the fact that a photograph does not, ordinarily, enable a witness to assess matters such as the height and build of the person who is being identified. As we have mentioned, FD himself expressed some qualifications to his identification of the photograph of the applicant. He narrowed the possible 'candidates' to those depicted in four photographs, which (according to FD) did not look like each other. He expressed some uncertainty in selecting the photograph of the applicant, stating that 'I'm not sure' and 'Not one hundred per cent', but said that the photograph of the applicant 'Is more where I'm going with it'.

131 Taking that evidence at its highest, and applying the 'foggy night identification' analogy, for the purpose of an evaluation required under s 137 of the Evidence Act, it could not be maintained that the probative value of the identification evidence by FD was high. However, on the other hand, it could not be fairly described as being low. Given its limitations, its probative value might, for such purposes, be assessed as 'moderate'.

132 The other side of the equation, specified by s 137, is an assessment of the unfair prejudice to the applicant if the identification evidence were admitted. In our view, each of the matters, raised by counsel for the applicant, are the kinds of matters which juries are quintessentially equipped to understand and assess.

133 In that respect, we consider that a jury could quite adequately appreciate the potential effect of matters such as the witness' reluctance to participate in the identification process, and his concern as to the repercussions to himself arising out of the reasons why he attended the meeting with a person who he thought was 'Nikki'. Juries are commonly given, and follow, the type of directions which will necessarily be given concerning the photoboard identification process. Those directions, no doubt, will incorporate the matters which we have discussed. They include the circumstances in which FD made the relevant observation of the offender, and the circumstances in which the photoboard identification process was undertaken. Accordingly, we do not consider that there would be any material unfair prejudice to the applicant, should the identification evidence be admitted, which cannot be the subject of an effective direction by the judge to the jury.

134 For those reasons, the judge was correct to conclude that the probative value of the identification evidence of FD is not outweighed by the danger of any unfair prejudice to the applicant. It follows that ground 3 of the application for leave to appeal must fail.

135 For the foregoing reasons, the applicant has not made out any of grounds 1, 2 and 3 of the application for leave to appeal. Accordingly, the application for leave to appeal must be refused.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms and initials in place of the name of the applicant and other parties involved.

[2] R v Dempsey (a pseudonym) (Ruling No 1) [2019] VSC 582 ('Ruling No 1').

[3] R v Dempsey (a pseudonym) (Ruling No 2) [2019] VSC 583 ('Ruling No 2').

[11] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 355-6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ) ('Hughes').

[12] R v Clarke [1986] VicRp 64; [1986] VR 643, 653-4; McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 113-14; Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 345-6 [79], 350 [93] (McHugh J); Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 35-6 [108]-[112] (Hayne J); Arafan v The Queen (2010) 31 VR 82, 88-9 [24]-[27].

[13] RWC v The Queen [2010] NSWCCA 332 [123]. See also Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, 260 [124] (Simpson J) ('Gardiner'); Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 278 [359]-[360] ('Elomar').

[14] Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233, 260 [125] (Simpson J); Hughes [2017] HCA 20; (2017) 263 CLR 338, 356-7 [41] (Kiefel CJ, Bell, Keane and Edelman JJ).

[15] Hughes [2017] HCA 20; (2017) 263 CLR 338, 354 [41] (Kiefel CJ, Bell, Keane and Edelman JJ).

[17] Murdoch (a pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451, 471 [81] (Priest JA); El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93, 107 [46] (Leeming JA) ('El-Haddad').

[18] CW v The Queen [2010] VSCA 288 [6] ('CW'). See also Harris (a pseudonym) v the Queen [2015] VSCA 112; (2015) 44 VR 652, 654-5 [10]-[13] ('Harris').

[19] [2004] VSCA 12; (2004) 7 VR 375 ('Papamitrou').

[20] Ibid 390-1 [31]. See also CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, 494-5 [28]-[30] ('CGL'); PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146, 148 [8]; Cox v The Queen [2015] VSCA 28 [25], quoting CV v DPP [2014] VSCA 58 [9]-[11].

[21] [2014] VSCA 58 [14]. See also Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680, 719 [171]; Harris [2015] VSCA 112; (2015) 44 VR 652, 655 [13].

[22] CGL [2010] VSCA 26; (2010) 24 VR 486, 493 [22] (emphasis in original). See also CW [2010] VSCA 288 [7].

[23] Selby v The Queen [2017] NSWCCA 40 [24] ('Selby').

[24] Ibid [25] quoting El-Haddad [2015] NSWCCA 10; (2015) 88 NSWLR 93, 113-14 [74]. See also Page (a pseudonym) v The Queen [2015] VSCA 357 [59].

[25] Selby [2017] NSWCCA 40 [26].

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

[27] Elomar [2014] NSWCCA 303; (2014) 316 ALR 206, 278 [360].

[30] [2018] VSCA 39 ('Hague').

[31] (2016) 257 CLR 300 ('IMM').

[33] Ibid 314-15 [50] (citation omitted).

[34] R v Hague [2018] VSC 26 [48].

[35] Hague [2018] VSCA 39 [28].