Hashi v The Queen [2016] VSCA 288

38 As regards the scenario suggested to the complainant in cross examination, which she flatly rejected, the simple fact is that no evidence was adduced to support it. The applicant gave a no comment record of interview. He did not give evidence or call evidence at his trial. Puttage is not evidence.

39 As for the second argument advanced in oral submissions - that the coincidence evidence lacked significant probative value because the cigarette lighter and the deodorant aerosol are common items - it is not the nature of the items that is of significance but the use to which they were put, or allegedly put. The applicant did not, and could not, deny that the alleged use was unusual. Indeed the applicant came very close to conceding, unsurprisingly, that the alleged use was striking.

40 I am satisfied that the coincidence evidence had significant probative value. Though one incident involved alleged rapes and the other an attempted armed robbery, there was a high degree of similarity in the accounts of the complainant and the Caltex cashier having regard to some unusual features - the perpetrator spraying himself with deodorant, then using the spray and the lighter to shoot flames in a threatening manner near the face or upper body of his victims. The incidents were closely linked in time and circumstance.

41 Turning to the test in s 101 of the Evidence Act 2008 - whether the probative value of the coincidence evidence substantially outweighed the risk of unfair prejudice - the applicant contended that the risk of such prejudice was high.

42 Unfair prejudice can arise from a jury misusing or overvaluing evidence. The applicant's submissions focused on the danger of the jury misusing the evidence, and called to mind the oft quoted passage from the 1985 Interim Report of the Australian Law Reform Commission on Evidence:

By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.[5]

43 In assessing the risk of unfair prejudice, one must have regard to any directions which can be given to eliminate or ameliorate the risk. In this trial, the trial judge gave a limited use direction, a permissible use direction, an anti-prejudice or sympathy direction, a separate consideration direction and an anti-propensity reasoning direction. As a general rule, it is assumed that juries follow directions.[6] There was nothing about this case which would lead one to think that the general rule did not apply. The applicant did not identify any such reason.

44 Given the unusual common features in the accounts of the complainant and the Caltex cashier which gave the coincidence evidence particular cogency, and the likely efficacy of the jury directions, the trial judge was right in concluding that the coincidence evidence not only had significant probative value but probative value which substantially outweighed the risk of unfair prejudice. Consequently, he was also correct not to order severance.

[1] This was the car that was the subject of Charge 1 on the first indictment, which he had stolen earlier that day.

[2] We note that, curiously, neither the tendency or the coincidence notices specified that the evidence described in the notices was relevant to the rape charges. In relation to the incident involving the complainant, both notices referred only to the charge of 'conduct endangering persons' and identified the fact in issue to which the tendency and coincidence evidence related as 'whether the accused without lawful excuse recklessly engaged in conduct namely igniting the spray from an aerosol can with a lighter to produce a flame that placed [the complainant] in danger of serious injury'. No objection was taken at trial to the form of the coincidence notice. In this Court, neither the grounds of appeal nor the applicant's submissions adverted to the form of coincidence notice. Even if this matter had been agitated, the deficiency in the coincidence notice could not be said to have occasioned a substantial miscarriage of justice in circumstances where the applicant was made aware during the pre- trial argument that the Crown also relied on the coincidence evidence to support the prosecution case on the rape charges. The present case is quite different to Andelman v R [2013] VSCA 25 where the accused was unrepresented at his trial and there was no coincidence notice at all. The Court in Andelman found that the failure to serve a coincidence notice, in combination with other defects in the trial, resulted in a substantial miscarriage of justice.

[3] The trial judge directed a verdict of not guilty on Charge 2 as he took the view that there was no evidence of the element of dangerousness. He observed that the Crown position was that the complainant had been endangered by the fact that, having been sprayed with deodorant, the applicant then projected flames near her but "[there] was no evidence as to whether a naked flame anywhere near her could have set her alight".

[4] Either at trial or in the current proceedings.

1. [5] Australian Law Reform Commission, Evidence, Report No 26 (1985), [644], quoted, for example, in Papakosmos v R [1999] HCA 37; 196 CLR 297, [92].

[6] Dupas v R [2012] VSCA 328; 40 VR 182, [114], [177].