Luke Page (a pseudonym) v The Queen [2015] VSCA 357

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 As has so often been the case since the advent of the Evidence Act 2008 (the 'Act'), this interlocutory appeal concerns the admissibility of evidence as coincidence evidence and/or tendency evidence. Unusually, however, this appeal requires consideration of the differences between these two types of evidence, which in turn reflect the differences in the form of reasoning to which each type of evidence is directed.

2 As is now well established, appellate consideration of interlocutory challenges to rulings on admissibility is governed by the principles enunciated in House v The King.[2] Absent error of principle, therefore, this Court will only intervene on an interlocutory appeal if it is established that the conclusion about admissibility was not reasonably open on the evidence.[3]

3 As will appear, the prosecution sought to rely on evidence of particular conduct by the applicant as both coincidence evidence and tendency evidence. The judge concluded that the evidence was admissible as coincidence evidence and did not rule on whether it was admissible as tendency evidence.

4 For reasons which follow, we consider that her Honour's conclusion was reasonably open. We have also concluded that it would be reasonably open to the judge to admit the evidence as tendency evidence. It is a matter for the trial judge, but in our view the evidence may be regarded as possessing greater cogency as tendency evidence.

5 The applicant is facing trial on four charges of committing an indecent act with a child under 16 and two charges of sexual penetration of a child under 16. The complainant is his step-granddaughter, Susan, who is the granddaughter of the applicant's second wife. The offending is alleged to have occurred over a period of about 13 months, from 1997 to 1998, when Susan was aged 11 and 12 and the applicant was aged 61 and 62.

6 In November 2013, the applicant pleaded guilty to six charges of committing an indecent act with a child under 16. Those charges related to four complainants, each of whom was a granddaughter of the applicant. In the present case, the prosecution made application to the trial judge to lead evidence of the applicant's pleas of guilty to charges relating to two of the four complainants, Mary and Anita, who are sisters.

7 The prosecution sought to lead evidence of the admitted offending conduct as coincidence evidence and/or tendency evidence. The requisite notices were served under both s 97 and s 98, and an outline of argument filed in support of each notice. The judge ruled that the evidence was admissible as coincidence evidence and, as a result, did not proceed to consider whether it was also admissible as tendency evidence.

8 The applicant now seeks leave to appeal against that ruling. In our respectful opinion, it was reasonably open to her Honour to conclude that the evidence of the offending against Mary and Anita - which the applicant has admitted - would have significant probative value as coincidence evidence in relation to the charges involving Susan. Leave to appeal must therefore be refused.

9 At the urging of the parties, we have also considered whether the evidence of the admitted conduct is admissible as tendency evidence. In our view, it would be open to the sentencing judge so to conclude.

10 What follows is taken from the summary of prosecution opening for the applicant's forthcoming trial. The charges arise from two separate incidents, the first between March and April 1997, the second between September 1997 and April 1998. On both occasions, Susan's step-brother, Gerald, was present.

11 Susan (then aged 11) and Gerald were staying at the applicant's beach house. It was the first time that Susan had stayed at the house for a period of days.

12 The applicant had taken Susan and Gerald surfing. His second wife, Margaret, had remained at the house to heat up the spa. On the way back to the house, the applicant and the children stopped to get fish and chips, which they ate in the car. When they arrived at the house, Susan and Gerald took their wet suits off and jumped into the spa. They still had their bathers on. The applicant also got into the spa.

13 While they were in the spa, the applicant said to Susan and Gerald that it was 'cuddle time'. He pulled Susan towards him, so that her back was against his chest. He then squeezed her shoulders and kept squeezing his hands down her arms until he reached her waist. He then moved his right hand to her groin area, so that it was on top of her groin. He kept squeezing, using a pulsating motion, for approximately 30 seconds. (Charge 1 - indecent act).

14 The applicant then grabbed Susan's left hand and put it on his penis. He was wearing speedos. His penis was not erect. He used his left hand to move Susan's hand so that it was rubbing his penis for approximately two minutes (Charge 2 - indecent act).

15 His right hand was still on her groin area over her swimwear. He then started rubbing the top of her vagina with his fingers. She tried to move away but he grabbed her hand and moved it back to his penis. He then quickly moved his right hand and pushed his fingers into her vagina. (Charge 3 - sexual penetration of child under 16). Susan was trying to slide her groin area away from him while he did this.

16 When Susan did this, the applicant moved his hands to her hips and squeezed her waist, trying to pull her back to him, but she resisted. She managed to 'find her feet' and grabbed the side of the spa. She pulled herself up and went to the other side of the spa, where Gerald was. He was sitting in the spa, looking blankly at the water.

17 Neither Susan nor Gerald said anything during this incident.

18 On the second occasion, Susan and Gerald were again staying at the applicant's beach house. She was still 11 or had just turned 12.

19 As on the previous occasion, the applicant had taken the children to the beach to surf. They had stopped on the way home to get fish and chips. Susan recalls that, on this occasion, the applicant had paid for the fish and chips with five and 10 cent pieces, from a tub of coins which he kept in the car. She remembers this because she, the applicant and Gerald were laughing about it.

20 When they got back to the house, Margaret had heated the spa up for them. The children and the applicant got into the spa in their bathers. The applicant again said to Susan that it was 'cuddle time', which caused her to feel awkward. He then stretched his arm out and she went over to him. He spun her around, so that she was in the same position as she had been on the first occasion, with her back to his chest, except that this time she was sitting on his right leg rather than between his legs.

21 The applicant grabbed Susan's left hand and placed it on his penis over his speedos. He then moved her hand so that it was rubbing his penis in a 'back and forward' motion. His penis was erect. (Charge 4 - indecent act).

22 The applicant's right hand was rubbing Susan's right hip. He then moved her bathers to one side and moved quickly onto her vagina, where he started rubbing around the area of her clitoris. Susan could feel his fingers and they hurt her. (Charge 5 - sexual penetration of child under 16). Susan moved to the right and the applicant moved his right hand away. He then used his left hand to place Susan's left hand under his speedos and directly onto his penis. (Charge 6 - indecent act).

23 Susan was shocked. She moved her hand away but the applicant grabbed her hand again and put it back near his testicles, over his speedos. Nothing seemed to happen for 10 to 15 seconds, before Susan again pulled her hand back.

24 Gerald was in the spa at this time, just gazing at the water. He then came to where the applicant and Susan were, at the other side of the spa, and said, 'It's my turn'. Susan then moved and Gerald sat where Susan had been sitting.

25 Susan was so angry about what had happened that she wanted to do something naughty. So she stole a cigarette from Margaret and tried to smoke it in the park, but could not get it lit. Gerald recalls this incident.

26 Susan never stayed at the applicant's beach house again following this incident, although she did see him at family functions. At those times, she would try to maintain her distance from him.

27 Gerald recalls fish and chips being bought with five cent pieces, because it had embarrassed them. He recalls 'cuddle time in the spa bath at the beach house'. He says that the cuddles were 'normal cuddles'.

The charges to which the applicant pleaded guilty

28 The offending to which the applicant pleaded guilty occurred in 2006 and 2007, some years after the time when the offences against Susan are alleged to have occurred. The incidents on which the prosecution wishes to rely ('the admitted conduct') occurred at the home of Mary and Anita, at times when the applicant was staying as a guest of their parents.

29 When the applicant was staying at the house, he would go to the bedroom which the girls shared, to say 'good night' to them. While he was there he would massage them. One night, when Mary was aged between eight and nine years old, she was lying in her bed, on her back, while the applicant gave her a massage. During the massage, he put his hand under her pyjama pants and rubbed the top of her vagina over her underwear. (Charge 2 - indecent act).

30 A year or two later, when Mary was 10 years old, she started wearing a bra and often slept with it on. One night when the applicant was again staying at the house, Mary was in bed lying on her stomach. He came into her bedroom to massage her. He unclipped her bra and reached around and squeezed her chest with both hands. He then sighed. (Charge 3 - indecent act).

31 When Anita was aged five or six, the applicant was in the shared bedroom, sitting next to Anita on her bed, massaging her stomach. While he was doing this, he pulled down her pants and looked at her vagina. Anita told him to stop and he apologised. He stopped for a while, but would then do it again. Mary saw him doing this to Anita. He then put his hand inside Anita's pants and 'rubbed there' on her vagina for about two seconds. (Charge 4 - indecent act). Anita told him to stop and that it was not right. He said he was sorry but then would do it again.

The trial judge's reasons for admitting the evidence

32 As noted earlier, the trial judge ruled that the evidence of Mary and Anita was admissible as coincidence evidence. Noting the statutory requirement that the evidence must 'have significant probative value', her Honour formulated the applicable test as requiring an 'underlying unity' between the incidents but not necessarily 'significant' or 'remarkable' similarities. (It is clear that her Honour here meant to say 'striking', not 'significant', because a little later she said - correctly - that it was 'accepted that there is no need for remarkable or striking similarity'.)

33 In her Honour's view, there was a strong similarity between the admitted conduct and the charged conduct. The relevant similarities were said to be:

• the use of legitimate touching, in the form of massaging and 'cuddle time', to initiate contact;
• touching around the genital region in almost all cases;
• the presence of another child as an observer;
• the absence of an adult in the immediate vicinity, although proximate on the premises; and
• the occurrence of the incidents while the complainants were not fully clothed.

34 Further, her Honour viewed as material the similarity in ages of the complainants, all under 12 and pre-pubertal or pre-adolescent. It was also material that the applicant was between 61 and 71 years of age, 'an adult in late maturity', throughout the period of offending. Finally, her Honour emphasised the family relationship between the applicant and the respective complainants, which placed him in a position of trust.

35 Her Honour accepted that there were differences between the complainants' accounts in the location where the charged acts occurred, but observed that on each occasion the acts had occurred at premises where the applicant was residing. Similarly, while the passage of time between the charged conduct and the admitted conduct was suggestive of dissimilarity, her Honour said, the repeated offending over a 12 year period, and the similarity of the acts in both cases, demonstrated that there was nevertheless a 'strong underlying' unity that created sufficient connection between the episodes.

36 Having established that s 98(1) of the Act was satisfied, the judge turned to the requirements of s 101. She held that, while the evidence would have a highly prejudicial effect on the accused, it was substantially outweighed by the probative value of the evidence sought to be led. She reached a similar conclusion in considering the danger of unfair prejudice for the purposes of ss 135 and 137 of the Act. In her Honour's view, the provision of relevant directions to the jury could adequately mitigate the risk of unfair prejudice.

37 Further, her Honour concluded that there was no opportunity for, or likelihood of, collusion or contamination between Mary and Anita on the one hand and Susan on the other. There was no challenge to that finding on this application.

38 Ultimately, her Honour held that the admissible evidence was to be limited to the contents of the previously negotiated plea summary, rather than the complainants' VARE interviews or the depositions, which made reference to disputed incidents of sexual penetration. The coincidence evidence which was ruled admissible is evidence of the applicant:

(a) rubbing the top of the vagina over the underwear [Mary];

(b) squeezing the girl's breasts under her underwear [Mary]; and

(c) rubbing the vaginal area under the underwear [Anita].

39 In his application for leave to appeal, the applicant advances three grounds, which respectively contend that the judge erred:

(a) in that she acted on a wrong principle, to the effect that although an 'underlying unity' was required, there did not need to be significant or remarkable similarities;

(b) in failing to consider the substantial differences between the admitted conduct and its surrounding circumstances and the charged conduct and its surrounding circumstances; and

(c) in finding that there was sufficient similarity between the two sets of conduct to justify the reception of evidence of the admitted conduct as coincidence evidence.

40 In the event, the applicant's submissions concentrated on the second and third of these grounds. The principal submission was that there was insufficient similarity between the admitted conduct and the charged conduct to allow the evidence of the admitted conduct to be admitted as coincidence evidence. There were, it was said, 'substantial dissimilarities' between the two.

41 In the alternative, the applicant submitted that, even if there were sufficient similarity to give the evidence of the admitted conduct significant probative value, the admission of that evidence

would necessarily involve disclosing that the applicant had previously been convicted of sexual offences against female children. This would be so highly prejudicial that the applicant could not receive a fair trial. The fact of the earlier conviction would overwhelm the consideration of the evidence relating to the present allegations in a way which could not be remedied by even the most careful judicial direction.

42 We turn first to a consideration of the basis for coincidence reasoning. Coincidence reasoning relies on the improbability of coincidence being the explanation for common features or similarities between 'events or the circumstances in which they occurred'.

43 The admissibility of coincidence evidence is governed by s 98 of the Act, which applies where 'evidence that two or more events occurred' is sought to be admitted

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 ...[4]

44 In CGL v DPP,[5] this Court held that the questions to be addressed in relation to coincidence evidence were as follows:

1. Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?
2. If so, would the evidence of those events and circumstances tend to prove that the accused:

(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 ought 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? [6]

45 Stripped to its essentials, s 98(1) directs attention to the improbability of coincidence being the explanation for the similarities in the descriptions of events or circumstances. As Redlich JA said in RR v The Queen,[7] coincidence reasoning

requires a nexus between the various sets of allegations such that they must either all be true or have arisen from 'a cause common to the witnesses or from pure coincidence'.[8]

that the evidence possesses some unusual features common to the events in question or that there be a combination of features common to the events in question which renders it improbable that those persons would give such accounts of the events if that conduct did not in fact occur.[9]

46 As s 98(1) makes clear, the existence of similarities is a necessary condition of the admissibility of coincidence evidence. And, as Simpson J pointed out in R v Nassif:[10]

the more numerous the items of similarity and the more precise, the stronger the inference of improbability ...

The cogency and significance of the events and/or the surrounding circumstances will depend on the issue to be proved, as well as on the nature of the evidence. The issue may be whether a particular person committed the acts, whether the acts were committed at all, or the state of mind of the person performing the acts.[12]

48 For evidence to be admitted for the purpose of coincidence reasoning under s 98, it must possess 'significant probative value'. Again in CV the Court said:

A logical analysis of the evidence must be undertaken to determine whether the evidence has the capacity to rationally affect the assessment of the probability of the existence of the fact in issue and to a significant degree.[13] The trial judge must have regard to all of the evidence that the party seeking the admission of the evidence may adduce.[14]

...

The question will always be whether the combined effect of the events or circumstances in which they occurred could establish the improbability that the fact in issue occurred by coincidence and to a significant degree.[15]

...

There may be such a relationship between the events - in purpose, circumstances and/or mode of conduct - that coincidence reasoning will be open. The necessary relationship is not confined to events each of which exhibits unusual characteristics. The evidence of each may provide strong support for the others.[16]

...

The evidence ... must be capable of rationally affecting the probability of the existence of the fact in issue to a significant extent, meaning (at least) an extent greater than is required for mere relevance.[17]

49 The issue in the present case is whether the accused committed the acts alleged. Once collusion is ruled out, the Crown relies upon coincidence reasoning to establish the improbability that the events and circumstances alleged by Susan could, by 'coincidence', have common features or similarities with the admitted events and circumstances described by Mary and Anita. On the Crown's contention, the events and circumstances described by Mary and Anita had such similarities with the account given by Susan as to make it more probable that the account given by Susan is true.[18]

50 The fact that the coincidence evidence relied upon is not disputed is of some importance when assessing the strength of that evidence. As the Court in Velkoski pointed out (in relation to tendency evidence), one of the factors relevant to an assessment of probative value is whether the evidence is disputed.[19] Further, the absence of dispute means that the risk of circular reasoning will not arise.[20]

Distinction between coincidence reasoning and tendency reasoning

51 It is not uncommon, in cases of sexual offending, for the prosecution to seek to rely on the same evidence as both coincidence evidence and tendency evidence.[21] In such cases, the arguments advanced in support of admissibility tend to be much the same, relying in each case on what are said to be material similarities between the charged conduct and the conduct the subject of the evidence sought to be admitted ('the other conduct').

52 It is important, however, to recognise the differences between the two types of evidence, which in turn reflect the different types of reasoning to which each is directed. Coincidence reasoning relies on similarities to show the improbability of coincidence. Tendency reasoning relies on similarities as revealing a tendency on the part of the accused to act in a particular way or have a particular state of mind.

53 With coincidence reasoning, as we have said, the improbability of coincidence makes it more probable that the accounts given of the respective events/ circumstances are true. Where - as here - the issue is whether the acts alleged occurred, coincidence evidence will ordinarily need to exhibit a greater level of similarity, or commonality of features, than is required for tendency reasoning.

54 For it is the cogency of the particular (often unusual) features in the respective accounts which establishes the improbability that the several witnesses would independently have given such similar accounts unless they were truthful and accurate. In other words, it is most unlikely that several such witnesses would independently have told the same lies.[22] With tendency reasoning, on the other hand, the evidence may reveal a 'pattern of conduct' or 'modus operandi' without there necessarily being the similarity required in order to exclude coincidence.

55 Where the issue is whether the charged event occurred, courts have endeavoured to capture - in abstract terms - the degree of similarity required between the charged conduct and the other conduct (and/or the circumstances in which they occurred). Thus, the cases speak of the need to show:

• 'a sufficient connection in time and circumstances';
• 'an underlying unity'; and
• ' a pattern of conduct'.

56 The use of such phrases should not, however, be allowed to distract attention from the essential inquiry to which s 98(1) is directed in a case such as this. The question which needs to be addressed is: is it improbable that the respective accounts given (of the charged conduct and of the other conduct) would describe the same feature, or features, if the accounts were not truthful.

57 There is no requirement of 'unity', 'connection' or 'pattern' over and above the requirement of cogency in the common features or similarities. Thus, there might be a single unusual feature of the alleged offending, or of the circumstances, which recurs in the descriptions given by the respective witnesses.[23] The very distinctiveness of that feature might be sufficient to support 'improbability of coincidence' reasoning, despite there being no other similarities or, at least, none which would attract the description 'underlying unity' or 'pattern of conduct'.[24] As this Court said in Velkoski, the greater the number of complainants, the less distinctive or similar the evidence need be to satisfy coincidence reasoning.[25]

58 Since the judge must be satisfied that the evidence will have 'significant probative value', an argument based on similarities - as s 98(1) requires it to be - will ordinarily need to identify similarities in respect of:

• a distinctive or unusual feature (or features) of the 'event or the circumstances in which it occurred'; or
• a combination of features 'of the event or the circumstances in which it occurred'.

They must be similarities which would make coincidence (or invention) improbable.

59 Logically, however, once the identified similarities can be said to raise the improbability of coincidence - and hence give the evidence its probative value - the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.[26]

60 In the present case, in our view, it was reasonably open to the judge to conclude that there were sufficient similarities between the admitted conduct and the alleged conduct to support coincidence reasoning and to give the evidence of the admitted conduct significant probative value. As noted earlier, those similarities were identified as follows:

• the use of legitimate touching, in the form of massaging and 'cuddle time', to initiate contact;
• touching around the genital region in almost all cases;
• the presence of another child as an observer;
• the absence of an adult in the immediate vicinity, although proximate on the premises; and
• the occurrence of the incidents while the complainants were not fully clothed.

61 We note that these are similarities going to both the 'events' and the 'circumstances in which they occurred'. One of the features which her Honour identified was the applicant, as a grandfather, using 'legitimate touching' as a cover for sexually interfering with his granddaughters. It was open to her Honour, in our view, to view such conduct as sufficiently unusual for this to be a relevant similarity, capable of supporting coincidence reasoning.[27] Finally, the fact that the applicant admits the truth of the evidence about his offending against Anita and Mary reinforces the conclusion that the evidence has significant probative value.

62 Before considering s 101, we turn to consider whether the evidence is also admissible as tendency evidence.

63 Section 97(1) applies to evidence of 'a tendency that [the accused] has or had', where that evidence is to be relied on to prove that the accused has (or had) a tendency 'to act in a particular way, or to have a particular state of mind'. In the present case, the prosecution wishes to rely on the evidence of the admitted conduct as evidence of the applicant's tendency to:

• to engage in sexual activities with young and pre-pubescent female relatives;
• to do so in circumstances where he was in a position of trust and had close access to the children, as they were either his own grandchildren or step-grandchildren;
• the sexual touching took place by commencing with legitimate touching (massage, cuddling) instigated by the accused.

64 Recently, in Velkoski, this Court provided a clear restatement of the principles which should guide judges in deciding whether the evidence sought to be led has

the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.[28]

65 The principles there laid down were subsequently summarised in Rapson v The Queen,[29] as follows:

1. To be admissible, the other evidence must have significant probative value, which requires far more than 'mere relevance'.[30]
2. To satisfy that requirement, there must be sufficient similarity or commonality of features, between the other conduct and the charged conduct, that the other evidence cogently increases the likelihood that the charged conduct occurred.
3. In deciding whether there is sufficient similarity or commonality between the features of the other conduct and the features of the charged conduct, it remains:

apposite and desirable to assess whether those features reveal 'underlying unity', a 'pattern of conduct', 'modus operandi', or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the other evidence its relative strength.[31]

1. Commonality of relationship between offender and victims is a relevant factor, but will not ordinarily be sufficient to give the other evidence significant probative value. In the 'not so uncommon situations of parent and child or teacher and pupil, some other features of similarity must be present'.[32]
2. In such cases, commonality of relationship must be accompanied by some degree of similarity or commonality in either the nature of the sexual misconduct, or the surrounding circumstances, or a combination of both.

66 As the Court in Rapson[33] noted, these propositions have an important corollary. It is that dissimilarity in the nature of the sexual act(s) (as between the charged conduct and the other conduct) does not necessarily preclude tendency reasoning. The Court adopted the following statement from the Crown's submission in that case:

This follows from the proposition that the underlying pattern can be found in either the offending or in the circumstances surrounding the offending. Of course, the more marked the dissimilarity in the sexual misconduct the greater the requirement for there to be a pattern of commonality or underlying unity elsewhere in the evidence;

Similarly variation in the surrounding circumstances in which the alleged offences are committed will not automatically disqualify the evidence as admissible tendency evidence. Again, it will be a question of fact and degree.[34]

67 In the present case, in our view, the evidence of the admitted offending against Mary and Anita is evidence of the applicant's tendency to act in a particular way. The relevant similarities between the circumstances in which the admitted conduct and the alleged conduct respectively took place 'render the occurrence of [the charged conduct] more likely'.

68 The relevant tendency is accurately described in the tendency notice, as set out above. That is, the evidence of the offences committed against the sisters will show that the applicant has a tendency

to engage in sexual activities with pre-pubescent female relatives, in circumstances where he is in a position of trust and has close access to the children, and to do so by commencing with legitimate touching instigated by him.

69 As noted earlier, the judge did not decide whether the evidence could support tendency reasoning. In our view, there is a sufficient similarity for this purpose in the way in which the applicant allegedly took advantage of the situation of parental or quasi-parental trust in which he was placed, by creating for himself the opportunity to have sexual contact with the child(ren).[35] In both instances, he contrived to place himself in a position of close physical proximity to the child in question, at a time when the child was in a state of semi-undress and away from parental scrutiny. Having done so, he commenced his touching of the child by using, as a pretext, a seemingly innocuous and affectionate activity.

70 In the case of the admitted offending, the chosen activity was massage. The child would naturally have had no hesitation in allowing the applicant to touch her because, she believed, he would be treating her in a caring and therapeutic fashion. Likewise, in the alleged incidents involving Susan, the applicant lured her into his embrace by using the phrase 'cuddle time'. Cuddling is a perfectly commonplace, affectionate activity between parent/grandparent and child, and the child would have had no concern about her safety in accepting the applicant's invitation.

71 Finally, there is material similarity in the fact that - on each account - the applicant takes advantage of the child's physical proximity, and her state of semi-undress, to touch her on or inside the vagina. Taken by itself, that commonality in the nature of the sexual abuse might not be significant but, as part of a 'pattern of conduct', it further enhances the probative value of the evidence as tendency evidence.

72 Accordingly, it would be open to her Honour to conclude that the evidence satisfies the requirements of s 97(1). Moreover, we think that this is the preferable basis of admissibility in this case. That is, the evidence provides stronger support for tendency reasoning than for coincidence reasoning. The evidence of tendency is clear whereas reasonable minds might differ about the improbability of coincidence in respect of the similarities relied on.

73 As noted earlier, the applicant submitted that the prejudice which would flow from the admission of this evidence was that it would disclose prior convictions for sexual offending against female children. Ordinarily, of course, there would be real force in this argument. Reference to prior convictions in criminal trials is scrupulously avoided, to prevent juries engaging in impermissible propensity reasoning.

74 The present case is, however, quite different, because of the basis on which the evidence is made admissible. The applicant has admitted to sexual offending against young girls, and to having done so in circumstances which give the evidence of that offending significant probative value in relation to the charges he now faces. Indeed, the fact that the conduct is admitted, rather than merely alleged, means that the evidence will go before the jury unchallenged and is likely, therefore, to carry greater weight than if it were contested.

75 As is always the case, the judge will be required to give clear directions about how the evidence can be used, and how it may not be used. The giving of appropriate directions, and the required propensity warning, is necessary to ensure that this evidence is treated appropriately, and is not given weight which it does not deserve or otherwise used impermissibly.

76 As became clear during argument, the parties do not intend to mention the fact of the applicant's conviction. The evidence of the admitted conduct can simply be led as such, though the fact that it is not challenged will not be lost on the jury.

77 Accordingly, in our view, s 101 is no bar to the admission of this evidence.

78 The application for leave to appeal must be refused.

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the persons mentioned herein.

[2] [1936] HCA 40; (1936) 55 CLR 499.

[3] KJM v The Queen [No 2] (2011) 33 VR 11.

[5] [2010] VSCA 26; (2010) 24 VR 486 ('CGL').

[7] [2011] VSCA 442 ('RR').

[10] [2004] NSWCCA 433 [52].

[11] CV v DPP [2014] VSCA 58 (Redlich, Osborn JJA, Sifris AJA) ('CV').

[13] Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262 (citations in original).

[14] CV [2014] VSCA 58 [6].

[18] Velkoski v The Queen [2014] VSCA 121 [175] ('Velkoski'); Hoch [1988] HCA 50; (1988) 165 CLR 292, 254.

[19] Velkoski [2014] VSCA 121 [166] citing Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook, 2nd ed, 2013) 466-7.

[20] AE v The Queen [2008] NSWCCA 52; Ibrahim v Pham [2004] NSWSC 650.

[21] See, eg CGL [2010] VSCA 26; (2010) 24 VR 486.

[22] Judicial College of Victoria, Criminal Charge Book (29 June 2015) [4.15.6] .

[23] See, eg NAM v The Queen [2010] VSCA 95 [12] ('NAM').

[24] See, eg R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 229 [47].

[25] Velkoski [2014] VSCA 121 [175].

[26] See El-Haddad v The Queen [2015] NSWCCA 10 [76].

[27] See, eg NAM [2010] VSCA 95 [16]-[20]; RHB v The Queen [2011] VSCA 295 [18]; DR v The Queen [2011] VSCA 440 [88].

[29] [2014] VSCA 216 ('Rapson').

[35] Cf Reeves v The Queen (2013) 41 VR 275, 289-90 [54]-[56]; Rapson [2014] VSCA 216 [35]. See also Saoud v The Queen [2014] NSWCCA 136 [52].