DPP v B C R [2010] VSCA 229

1 This is an application by the Crown for leave to appeal against an interlocutory decision, under s 295 of the Criminal Procedure Act 2009 (the 'Act'). The application relates to a pre-trial ruling of his Honour Judge Punshon, made on 9 August 2010, in which the judge refused to admit tendency and coincidence evidence sought to be adduced by the Crown. As s 295(3) of the Act requires, his Honour certified that the evidence, if ruled inadmissible, would eliminate or substantially weaken the Crown case. Further, and in the alternative, he certified that the decision was otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[1]

2 The background to the pre-trial ruling was as follows. The respondent was presented in the County Court on 40 counts of sexual offences, comprising four counts of buggery, 28 counts of indecent assault on a male person under 16, one count of gross indecency, five counts of indecent assault, one count of taking part in an act of sexual penetration with a person between the ages of 10 and 16, and one count of attempting to take part in an act of sexual penetration with a person between the ages of 10 and 16.[2] The offences were alleged to have been committed between 1 January 1969 and 31 December 1988 against 14 different complainants who attended three different Roman Catholic schools. Seven complainants alleged sexual abuse while they were at a school in Ballarat, five were students at a school in Box Hill and two attended a school in Geelong. They ranged in age from seven to fourteen years at the time of the offending. The accused was a Christian Brother who taught at these schools.

3 Since 1 January 2010, the admission of tendency and coincidence evidence has been governed by the Evidence Act 2008. Sections 97(1) and 98(1) of the Evidence Act 2008 provide as follows:

97 The tendency rule

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

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

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

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless -

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

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

4 As required by ss 97(1)(a) and 98(1)(a) of the Evidence Act 2008, the Crown served five notices indicating its intention to adduce tendency evidence and five notices indicating its intention to adduce coincidence evidence, on the respondent.

5 The first tendency notice referred to the evidence relating to all of the alleged offences and to uncharged acts relating to particular complainants. The Crown sought a ruling that that evidence was cross-admissible between all the complainants. The notice said that the tendency sought to be proved was the tendency of the accused to:

(a) act in a particular way, namely:

To act upon his sexual attraction to males aged between 7 and 14 years who were then students at the school at which he then taught and who were then under his care, supervision and authority.

(b) have a particular state of mind, namely:

To have a sexual attraction to males aged between 7 and 14 years who were then students at the school at which he then taught and who were then under his care, supervision and authority.

6 Table A contained within that notice refers to the 14 complainants and the particulars of the sexual acts which provided the basis of the 40 counts. Table B sets out the particulars of the conduct relied upon in relation to each complainant, the circumstances in which that conduct occurred and the names of those who witnessed that conduct. Table C sets out the parts of the depositions in which relevant evidence can be found. These tables extend over a total of 31 pages, not including the material in depositions.

7 In tendency notices 2 to 5, particular counts and uncharged acts are grouped in various ways, for the purposes of proving that the accused had the particular tendency alleged. The conduct relied upon is said to prove the tendency of the accused to:

(a) 'sexually abuse males between the ages of 7 and 13 who were then students at the school at which he then taught under the pretext of comforting them' (notice 2 );

(b) 'sexually abuse males between the ages of 8 and 12 who were then students at the school at which he then taught after getting access to them on the pretext of reward or punishment' (notice 3);

(c) 'engage in an act of anal penetration with males aged between 8 and 12 who were then students at the school at which he then taught' (notice 4); and

(d) 'engage in sexual abuse of males aged between 8 and 13 years who were then students at the school at which he then taught and who were then under his care, supervision and/or authority, such abuse occurring in the presence of others ... in the confidence that his conduct would go unreported, unbelieved or tolerated by the school authorities' (notice 5).

8 Each tendency notice contains charts listing the particular acts said to support the tendency relied upon in that notice and indicating the section in the depositions in which the evidence relating to this conduct is to be found.

9 The five coincidence notices follow the pattern of the five tendency notices, although they seek the admission of the evidence for a different purpose. The Crown relies on the similarity of specified events to show that it is improbable that these allegations would have been made coincidentally, if the alleged offences had not actually occurred.

10 The first coincidence notice relies on all of the alleged offences to prove that the respondent

acted upon his sexual attraction to males aged between 7 and 14 years who were then students at the school at which he then taught and who were then under his care, supervision and authority

and that he had a sexual attraction to males in the same age range, in the same circumstances.

11 Like the tendency notices, the other four coincidence notices arrange conduct involving particular complainants in groups. Again each of these notices is accompanied by charts setting out the nature of the conduct and the circumstances in which it is said to have occurred and referring to the depositions.

12 At the hearing below, defence counsel foreshadowed that an application would be made for severance of the presentment and separate trials in relation to some of the 14 complainants. Counsel for the Crown said that the Crown position on severance would not be determined until the judge had ruled on the admissibility of the tendency and coincidence evidence.

13 Judge Punshon heard detailed submissions from the parties before making his ruling. After a hearing lasting approximately four days his Honour refused the Crown's applications for admission of evidence as set out in the tendency and coincidence notices, although he left open the possibility that evidence relating to some counts might be cross-admissible. His Honour deferred any decision on severance of counts until determination of this application for leave to appeal.

14 So far as the tendency evidence was concerned his Honour referred to the principles set out by the New South Wales Court of Criminal Appeal in R v Ngatikaura[3] and R v Fletcher[4] and to the decisions of this Court in recent interlocutory appeals in CGL v Director of Public Prosecutions,[5] NAM v The Queen,[6] PNJ v Director of Public Prosecutions[7] and GBF v The Queen.[8] (We refer to these below as the 'recent Court of Appeal decisions'.)

In Ngatikaura, Simpson J noted that once it was established that the evidence was tendered for a tendency purpose, it did not necessarily render the evidence inadmissible. It simply means that the appropriate procedures had to be followed and the necessary tests applied, which she outlined in Fletcher, stating:

'The first task is to assess the extent to which the evidence in question has probative value (that is, the capacity rationally to affect the probability of the existence of a fact in issue); secondly (where the answer to that question is in the affirmative), to assess and predict the probative value that the jury might ascribe to the evidence. Where the result of that assessment is that the evidence would not, either alone or in conjunction with other evidence already adduced or to be adduced, have significant probative value, the evidence is not to be admitted. Where, however, the assessment is that the evidence would have significant probative value, the court must then apply s 101 ...'[10]

16 He accepted the Crown submission that, in deciding whether the tendency evidence had significant probative value, it was necessary to consider

factors such as the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from the evidence as to the tendency of a person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur. Additionally, it was submitted that I need to consider matters such as the number of occasions of particular conduct relied upon, the time gaps between them, the degree of specificity and similarity in the alleged conduct the degree of similarity of the surrounding circumstances, whether the evidence is disputed and whether the evidence is led to explain or contradict tendency evidence adduced by another party. Further, it was submitted that there is no requirement for 'striking similarity' or 'unusual features'. As a generalised statement of relevant matters concerning the assessment, I accept these propositions.[11]

17 His Honour also said that he was required to consider the possibility of concoction or innocent infection when assessing the probative value of the evidence and whether the probative value of the evidence substantially outweighs any prejudicial effect. He noted that:

No argument was put concerning concoction. The defence referred to some risk of innocent infection but the argument was not developed in submissions. It is not necessary to say more about concoction or innocent infection for the purpose of this ruling.[12]

18 In deciding whether the tendency evidence had significant probative value his Honour said that he 'accepted that the evidence relied upon does establish the asserted tendency' although some particular acts might not do so. He said that

although I am required to consider distinguishing features when assessing the evidence of an alleged tendency the presence of manifest differences would not necessarily be fatal to an argument based on tendency or coincidence. It all depends. The common feature may be so striking and unusual to justify cross-admissibility.[13]

19 In applying those principles to the facts, his Honour said that he was constrained by the recent Court of Appeal decisions to hold that the first tendency notice, which referred to all complainants and all offences, was too general. Because of the variations between the alleged acts, the offences or uncharged acts involving one complainant could not be regarded as 'significantly probative of the fact in issue concerning any count'.[14] His Honour said that even if the evidence had significant probative value, that probative value was substantially outweighed by the prejudice to the respondent, given the vast amount of evidence about the respondent's conduct which the Crown sought to call.[15]

20 His Honour then undertook a detailed examination of the evidence said to support the tendencies identified in notices 2 to 5. One example suffices. The second tendency notice sought to prove that the accused had a tendency to

sexually abuse males between the ages of 7 and 13 who were then students at the school at which he taught under pretext of comforting them.

21 His Honour said that not all the evidence on which the Crown sought to rely demonstrated this tendency. Although some of the alleged conduct involved indecent touching while comforting students who had been injured playing sport, others involved alleged touching after punishment of students and touching after comforting students who had not been injured, and therefore lacked the distinctive feature of 'comforting after injury'.[16]

22 After applying a similar analysis to the evidence relied upon in other tendency notices, his Honour concluded that there was an insufficient identifiable pattern of similarities in the circumstances of the offending 'to make out a tendency, which is significantly probative of the relevant fact in issue concerning any count'.

23 Nevertheless the judge expressed the tentative view that the evidence relating to counts 5, 19, 20, 21, 22, 23, 27 and 31, involving complainants PJM, SPR, PND, JFA and PJG, might have significant probative value as evidence of the respondent's tendency to sexually abuse young boys at the same time as he was punishing them.

24 The purpose for which tendency evidence is admitted under s 97 of the Evidence Act 2008 is, of course, different from the purpose for which coincidence evidence is admitted under s 98. However at the hearing below counsel for both the Crown and the accused conceded that the factors which were to be considered in determining whether the tendency evidence had significant probative value were also relevant in determining whether the evidence had significant probative value in demonstrating the improbability of multiple complainants making allegations of sexual offending against the respondent, if these acts had not, in fact, occurred.[17] His Honour concluded that the notices did not show sufficient similarity between the alleged offences and uncharged acts to permit the admission of the evidence relied upon in the notices, as coincidence evidence.

The Crown's submissions on the leave application

25 Counsel for the Crown submitted that leave to appeal against the interlocutory decision should be granted under s 297 of the Act, because the learned judge's ruling that the tendency and coincidence evidence was inadmissible, would substantially weaken the prosecution case.[18] It was further said that it was in the interests of justice to have the matter determined because the admissibility of tendency or coincidence evidence was likely to arise in numerous cases in the future. This was said to be relevant to the exercise of the court's discretion to grant or refuse leave under s 297(1)(c) of the Act. Although the Court is required to consider whether grant of leave would disrupt or delay the trial process in exercising its discretion to grant or refuse leave, counsel submitted that no such disruption would occur, because the trial had not yet commenced.

26 The Crown's submission that his Honour had incorrectly ruled that the evidence was inadmissible for tendency or coincidence purposes was put in three ways. Counsel's primary submission was that the judge incorrectly considered that the decisions of this Court in CGL,[19] NAM[20] and PNJ,[21] required him to decide whether the alleged offences and uncharged acts had distinctive or unusual features. He submitted that his Honour had held that tendency and coincidence evidence did not have significant probative value unless it met these requirements.

27 Counsel's secondary submission applied if, contrary to his primary contention that the comments in CGL,[22] NAM,[23] and PNJ[24] were only dicta, the recent Court of Appeal decisions had held that the admissibility of tendency and coincidence evidence required the relevant acts to have distinctive or unusual features. In those circumstances, counsel submitted that such authorities were inconsistent with New South Wales authority and were therefore wrong. In support of that submission, counsel relied on R v Lockyer,[25] Fletcher,[26] R v Ford[27] and R v Joiner.[28]

28 In the Crown's written outline, the argument was expressed as follows:

There is nothing in s 97 [of the Evidence Act 2008] or in authority from other jurisdictions which warrants the importation of a requirement that there be something 'distinctive' about the evidence before it may be reported as having significant probative value. [29]

While it is accepted that there needs to be sufficient similarity between the conduct sought to be led as tendency evidence ('the evidence') to enable a tendency to be identified, significant probative value of the evidence can, in appropriate cases, be established by factors other than 'sufficient similarity' or characteristics which are 'distinctive', 'unusual' or 'remarkable'.

Evidence which shows an entrenched, deep-seated pattern of sexual abuse of members of a particular section of the community over a long period of time should be attributed significant probative value. The fact that there is no similarity which can be described as 'striking', 'distinctive', 'remarkable' or 'unusual' should not prevent such evidence being found to have significant probative value in an appropriate case.

The evidence in each Notice describes a prolonged course of conduct in relation to each of the complainants, whereby each was subjected to sexual abuse by a series of not dissimilar techniques, such as to give the evidence significant probative value whilst not having any distinctive or remarkable quality. The evidence discloses similar techniques and ruses to access the complainants, groups of similar acts, and a pattern of responding to the complainants' reactions in a manner which has great probative force.

The setting in the present case is not necessarily a feature which gives the evidence significant probative value. However, the fact that the offences are alleged to have occurred at three different schools, which had students of different ages at them, shows that the setting did not dictate the nature of the victims as alleged in the present case so as to make the setting irrelevant. The similarity of the victims chosen despite the different schools and ages of the students at them demonstrates that this was a group targeted by the accused by reference to the features alleged.

The probative force of the evidence lies in the manner in which the accused used his position and the setting to be alone with his male charges without suspicion or resistance such that he could and did act in the manner alleged.

29 Finally, counsel for the Crown submitted that even if the Court of Appeal had correctly stated the principles governing the admissibility of tendency evidence, the judge below had wrongly applied those principles in deciding that the tendency and coincidence evidence was inadmissible.

30 The Crown's submission then referred to the different purposes for which it sought to adduce coincidence evidence and argued that the evidence relied upon in the coincidence notices had 'significant probative value' because

[t]he number of allegations of similar events is highly relevant to the probative value to be attributed to coincidence evidence in the present case. In a case where the issue is whether the accused did the acts alleged, evidence may have little probative force if it only demonstrates (for example) two broadly similar events. However, the same broad similarity may be attributed more probative value if it is alleged in a greater number of cases. Indeed, with 14 such events, the evidence, even though there is no distinctive or remarkable feature, is substantially more likely to have significant probative value. This is particularly so where there is no allegation of concoction or contamination (as here).

31 The Crown further submitted that the probative value of the tendency and coincidence evidence substantially outweighed its prejudicial effect on the respondent and it was therefore admissible under ss 101(2) and (3) of the Evidence Act 2008. Any risk of prejudice could be overcome by appropriate jury directions as to the use of the evidence.

The respondent's submissions on the leave application

32 Counsel for the respondent submitted that there was no inconsistency between Victorian and New South Wales authority on the factors which were relevant in determining whether tendency and coincidence evidence had significant probative value. In GBF[30] this Court held that:

Whether tendency evidence has significant probative value depends on the nature of the tendency. For example, evidence that an accused had a sexual interest in a complainant might be significantly probative of an allegation that he committed a sexual offence against that complainant. But, without more, it would not be significantly if at all probative that he committed a sexual offence against someone other than the complainant. Contrastingly, evidence that an accused had a tendency to commit a particular kind of act or to commit a particular kind of act in particular circumstances, might be significantly probative of an allegation that the accused committed another act of the kind or committed another act of the kind in particular circumstances.

In cases of the latter class, common law conceptions of similar fact evidence provide useful guidance. As Lindgren J observed in Australian Competition & Consumer Commission v CC (NSW) Pty Ltd (No8),[31] s 97 endorses the common law's healthy scepticism in relation to similar fact evidence. Accordingly, one is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity which logically implies that, because the accused committed the previous acts or committed them in particular circumstances he or she is likely to have committed the act in issue.

In the recently published decision of the New South Wales Court of Criminal Appeal in R v Ford[32] Campbell JA observed that:

'In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely to a significant extent, the facts that make up the elements of the offence charged [before tendency or coincidence evidence could be regarded as having significant probative value].'[33]

With great respect his Honour was surely correct.[34]

33 Counsel for the respondent submitted that Judge Punshon correctly applied that principle to the tendency and coincidence notices relied upon by the Crown in this case.

34 For reasons explained below, it is unnecessary to elaborate further on the respondent's submissions as to the correct test to be applied in deciding whether tendency or coincidence notice has significant probative value. We note only that in the written outline, counsel for the respondent submitted that the Crown's argument that the large number of alleged similar events increased the probative value of the evidence, was inconsistent with the decision of the High Court in Phillips v The Queen.[35]

35 At the request of the Court, the respondent's submissions at the hearing of the application focused on the question of whether leave to appeal should be granted. Counsel for the respondent submitted that, even if his Honour had applied the wrong test in determining whether the tendency and coincidence evidence was admissible, or had incorrectly applied the principles laid down in the recent Court of Appeal decisions, the application for leave to appeal should be refused.

36 Counsel for the respondent conceded that his Honour's ruling could substantially weaken the Crown case. Even if some counts involving different complainants were tried together, his Honour would be required to warn the jury that they could not reason from propensity.[36] However counsel submitted that the application for leave to appeal against his Honour's interlocutory decision was premature. The judge had not yet made any decision on the severance of counts, and in his impugned ruling he had indicated that some of the evidence might be cross-admissible as tendency evidence. The Crown had not served tendency or coincidence notices relating to these matters. Further, it was likely that an application might be made to stay the proceedings relating to five complainants.

37 Counsel for the respondent was asked whether, if leave to appeal were granted, the Court would be required to undertake a detailed examination of the evidence relating to the 40 alleged offences and 52 uncharged acts. In answer, she said that this would be necessary to permit the court to determine:

(a) whether the uncharged acts which did not allege sexual misconduct were evidence of tendency or coincidence (some uncharged acts may have been admissible as evidence of the context in which particular acts occurred);

(b) whether the evidence had significant probative value for tendency and/or coincidence purposes; and

(c) whether the evidence should be excluded under s 101(2) of the Evidence Act 2008.

38 In reply, counsel for the Crown submitted that it would be sufficient for a Court determining the interlocutory appeal to rely on the notices, the transcript of the hearing below and counsels' outlines of submissions.

39 In our opinion leave to appeal should be refused. Section 297(1) of the Act provides as follows:

Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

40 Section 297(1)(b)(i) is not satisfied, as the determination of the appeal will not render the trial (or trials) unnecessary. Nor is it obvious that s 297(1)(b)(ii) applies, given that his Honour has not yet determined the question of severance of counts. In these circumstances it is not possible to predict the effect of any decision made by this Court on the length of the trial or trials which may ultimately occur.

41 In R v DG,[37] this Court made the following remarks about s 297(1)(b)(iii):

The language of s 297(1)(b)(iii) presents some difficulties. The problem lies in the meaning to be accorded to the expression 'necessary for the proper conduct of the trial'. The word 'necessary' suggests a high degree of need, and is ordinarily synonymous with 'essential'. It connotes something more than merely 'useful', or 'important'. There are also problems with the expression, 'the proper conduct of the trial'. In one sense, any ruling on a point of evidence that is even arguably erroneous could be said to justify the giving of leave to appeal on the basis that to allow the evidence to be led would be 'be inconsistent with such proper conduct'. Plainly, however, the legislature could not have intended the phrase to be read so widely. Otherwise, s 297(1)(b)(iii) would not act as any sort of filter in determining whether leave to appeal should be given.

42 It is unnecessary to discuss s 297(1)(b)(iv) in detail, since the applicability of this provision was not argued.[38]

43 Further, as this Court pointed out in DG, the possibility of a successful appeal against conviction will almost always be reduced if a question as to the admissibility of evidence is determined on an interlocutory appeal. That does not necessarily mean that leave to appeal should always be granted in such circumstances. In DG the Court remarked that evidentiary rulings were both commonplace and numerous and warned that there were real dangers if leave to appeal against rulings related to the admission of evidence was too readily granted.[39]

44 We do not consider that leave to appeal should be granted to enable the bench hearing the appeal to consider the correctness of the decisions said by the Crown to be wrong. All these decisions are very recent. Although the Court of Appeal is not bound by its own previous decisions,[40] 'the doctrine of stare decisis remains important'.[41] To depart from principles laid down in its previous decisions the Court must be satisfied that those decisions are 'plainly wrong'.[42] In our view, an appeal against an interlocutory decision would only be an appropriate vehicle for challenging an existing line of authority in exceptional circumstances.

45 Counsel for the Crown also submitted that leave to appeal should be granted to determine whether his Honour correctly applied the principles governing the admissibility of tendency and coincidence evidence to the facts of this case.

46 In our opinion it is not in the interests of justice to grant leave to appeal for that purpose. We are not persuaded that the test applied by his Honour, in determining whether the tendency or coincidence evidence has significant probative value, was obviously wrong.

47 Applications for leave to hear interlocutory appeals must be resolved quickly, so that the business of the County Court is not disrupted and the Court of Appeal's conduct of its ordinary business can proceed efficiently. The ruling by the trial judge was preceded by four days of argument, was highly fact specific and involved consideration of a voluminous body of material. If leave to appeal were granted this Court would be required to consider the evidence relating to all alleged offences and uncharged acts separately. Obviously this would take a very considerable amount of time.

48 If leave were granted, the Court would not only have to consider whether any of the alleged acts had significant probative value as tendency or coincidence evidence, but in all likelihood, also, whether the probative value of the evidence substantially outweighed any prejudicial effect it might have on the accused. It would be undesirable for this Court to engage in that enquiry in circumstances where his Honour only considered the application of s 101(2) in relation to the first tendency notice.

49 Further, it would be premature to consider whether his Honour wrongly applied the law to the facts of this case. As we have said, the judge has not yet ruled on whether separate trials of some or all of the counts should be ordered. If the judge were to rule that all counts should be heard together, or decided that some counts should be grouped for the purposes of particular trials, that would be relevant to the exercise of the discretion under s 297(1) and in particular to sub-ss 297(1)(b)(ii) and (iii).

50 Even if we were to grant leave and set aside his Honour's ruling, the Crown may well serve new tendency and coincidence notices and seek a ruling from his Honour on the admissibility of evidence relating to some counts. In the future, the Crown may seek to group some of the offences in a way which makes evidence relating to them cross-admissible, as was foreshadowed by Judge Punshon. The grant of leave and the determination of an interlocutory appeal against the ruling would unnecessarily fragment the proceedings.

51 As we have said, it is likely that an application will be made to stay proceedings in relation to five of the complainants. For that reason any detailed consideration of the matters required to reach a conclusion on the correctness of his Honour's ruling could well be futile.

52 For these reasons we would refuse leave to appeal against his Honour's interlocutory decision.

[1] The order granting certification was made on 11 August 2010. His Honour apparently considered it necessary to refer to s 295(3)(b) as well as s 295(3)(a) because in PNJ v DPP [2010] VSCA 88, [33], this Court said that where the question of cross-admissibility was bound up with the question whether separate trials should be ordered, the interlocutory decision should not be characterised as one concerning the admissibility of evidence under s 295(3)(a).

[2] The offences varied, reflecting the provisions of the Crimes Act 1958 which applied at the time they were allegedly committed.

[3] [2006] NSWCCA 161; (2006) 161 A Crim R 329.

[4] [2005] NSWCCA 338; (2005) 156 A Crim R 308 ('Fletcher').

[5] [2010] VSCA 26 ('CGL').

[6] [2010] VSCA 95 ('NAM').

[7] [2010] VSCA 88 ('PNJ').

[8] [2010] VSCA 135 ('GBF').

[9] (Unreported, County Court of Victoria, Judge Punshon, 9 August 2010) ('Ruling'), [24].

[10] [2006] NSWCCA 161; (2006) 161 A Crim R 329, 343.

[17] His Honour accepted this approach: see ibid [220].

[18] Note that this criterion relates to certification under s 295(3)(a) of the Act.

[19] [2010] VSCA 26.

[20] [2010] VSCA 95.

[21] [2010] VSCA 88.

[22] [2010] VSCA 26.

[23] [2010] VSCA 95.

[24] [2010] VSCA 88.

[25] (1986) 89 A Crim R 457, 459. This was an application by the accused to admit tendency evidence from which it could be inferred that the accused's de facto partner was responsible for inflicting injuries to the child whom the accused was charged with murdering.

[26] [2005] NSWCCA 338; (2005) 156 A Crim R 308.

[27] [2009] NSWCCA 306, [38], [125].

[28] [2002] NSWCCA 354; (2002) 133 A Crim R 90.

[29] According to footnote 4 of the outline, this proposition was contrary to CGL [2010] VSCA 26, PNJ [2010] VSCA 88 and NAM [2010] VSCA 95.

[30] [2010] VSCA 135.

[31] [1999] FCA 954; (1999) 92 FCR 375, 400, 401.

[32] [2009] NSWCCA 306.

[34] [2010] VSCA 135, [26]-[28] (some citations omitted).

[35] [2006] HCA 4; (2006) 225 CLR 303.

[36] Defence counsel had conceded at the pre-trial hearing that counts 6 and 7 could be heard together.

[37] [2010] VSCA 173 ('DG'), [17], [18].

[38] We note however that where leave to appeal is granted to the Crown on a question concerning the admissibility of evidence, s 297(3) does not apply. Section 297(3) provides that 'a refusal of leave to appeal under this section' does not preclude any other appeal on the issue that was the subject of the proposed appeal. That section does not apply where leave to appeal is granted and the appeal determined. In these circumstances, a question may arise as to whether issue estoppel applies to the decision made on an interlocutory appeal, in a later appeal against conviction.

[39] [2010] VSCA 173, [33], [34].

[40] See R v Masciantonio [1994] VicRp 42; [1994] 1 VR 577, 609 (Ormiston J); Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245, 268-70 (Dawson, Toohey and McHugh JJ).

[41] R v BDX [2009] VSCA 28; (2009) 194 A Crim R 57, 84 (Vincent and Weinberg JJA).

[42] Re McIlrath [1959] VR 720, 728.