//
[2021] VSCA 104
General information, not legal advice.
Court of Appeal (Vic)
2021-04-26
Priest JA, Beach JA, Kyrou JA
Original judgment source is linked above.
DPP v [Patton] (Unreported, County Court of Victoria, Judge Mullaly, 10 November 2020)
CRIMINAL LAW - Interlocutory Appeal - Extension of time - Causing a bushfire - Coincidence evidence - Whether sufficient similarity between fires to justify admitting evidence - Extension of time refused - Evidence Act 2008 s 98(1)(b),
1 An indictment filed in the County Court charges the applicant with intentionally causing a bushfire[2] (five charges - charges 1 to 5). He intends to plead not guilty at trial.
2 On 10 November 2020, the judge ruled that the prosecution could, pursuant to s 98 of the Evidence Act 2008 ('the Act'), rely on coincidence evidence with respect to the five fires embraced by the five charges on the indictment ('the interlocutory decision' or 'the ruling').
3 Pursuant to certification granted by the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA'), the applicant wishes to seek leave to appeal against the judge's ruling. Given that the applicant did not file the necessary notice of application for leave to appeal against the interlocutory decision within the prescribed time,[3] the applicant must first persuade the Court to grant him an extension of time within which to do so.[4]
4 The proposed grounds upon which the applicant seeks to rely are as follows:
5 For the reasons that follow, we consider that none of the proposed grounds has substance. It would therefore be futile to grant an extension of time.
6 At the time of the alleged offences, the applicant, aged 74 years, resided in a house, and also rented a yard, in Traralgon. As part of a scrap metal business that he conducted, he would collect old whitegoods and mattresses (some of which were deposited at his premises), and would sell the scrap metal harvested from them.
7 Between 28 June 2018 and 5 August 2018, five fires were deliberately lit on a property in Cochranes Road, Traralgon South, belonging to Hancock Victorian Plantations ('HVP'). The relevant area is predominantly bush, surrounded by extensive plantations of eucalypt trees. In the case of each fire, the prosecution alleges that rubbish was set alight and left to burn. The prosecution case is that the applicant dumped the rubbish and then lit each of the fires.
8 Charge 1 relates to a fire on 28 June 2018. At approximately 7.50 am, the Country Fire Authority ('CFA') were called to a fire near Cochranes Road, Traralgon South. The fire was on HVP property, in a clearing within a Eucalypt plantation. When the CFA arrived, they found the fire burning over an area of approximately 10 square metres. The flames of the fire were reaching nearby trees, causing damage. There were no other people or vehicles in the vicinity when the CFA arrived. Police attended after the fire had been extinguished and identified burnt items including mattresses.
9 Charge 2 relates to 15 July 2018. Police and the CFA were notified of mattresses burning at the same location as the previous fire. Upon their arrival a fire was still alight, and was extinguished by the CFA. The fire was observed to have damaged nearby vegetation and had burnt a nearby fence post. Amongst the burnt debris, the remains of mattresses could be observed.
10 Charge 3 concerns a fire on 21 July 2018. Police and the CFA were again notified of yet another fire at the same location as the previous two. The CFA attended and extinguished the fire. When police arrived they observed burnt remnants of what appeared to be a couch.
11 Police conducted enquiries and located a witness, who, prior to 8 July 2018, had observed a white or silver utility with a tray, towing a tandem trailer in Cochranes Road. She observed two males wearing gloves and breathing masks collecting springs and metal from burnt mattresses and couches and loading them on to the trailer. The witness spoke to the younger of the two males. She also took note of the registration number of the utility and provided it to police, who determined that the registration number belonged to a utility registered to the applicant. On 1 August 2018, at approximately 9.30 am, police attended the registered address for the vehicle, the applicant's residence. The utility was parked at the front of the address, and a tandem trailer attached to the vehicle contained approximately 12 mattresses and several cardboard boxes.
12 Charge 4 relates to 2 August 2018. While investigating the earlier fires, police attended Cochranes Road at about 9.30 am. Upon arriving at the location of the previous fires, police observed a more recent fire still smouldering. They observed the remnants of 10 or 12 mattresses that had been destroyed by fire, and the remains of what appeared to be a cardboard refrigerator box. These appeared to be consistent with the items that had been observed on the applicant's trailer the previous day.
13 Later that same day, 2 August 2018, at approximately 1.00 pm, police installed a surveillance camera that covered some of the area where the fires had been taking place.
14 Charge 5 concerns 5 August 2018. At approximately 1.46 pm, the CFA attended a further fire at the same location. They observed the applicant at the scene with his utility and a tandem trailer. He was loading scrap metal, including mattress springs and wire, onto the trailer. A CFA officer observed there had been three further fires, each approximately one metre in diameter. These fires each contained metal, copper and electronic components. The officer spoke to the applicant, who said that he had been present for only 10 minutes, and that the fire was already going prior to his arrival. Police arrived after the CFA had extinguished the fire while the applicant was still present. The applicant drove off before police could speak to him.
15 Police later reviewed footage captured by the surveillance camera. It shows the applicant attending the scene in his utility, towing a trailer. The trailer appears to be loaded with a bath and other general rubbish in a wheelbarrow. Scrap mattress wire can be seen to be already present when the applicant arrives. He can be seen on the footage removing the bath and rubbish from the trailer and taking them to an area behind the trailer and out of view of the camera. The applicant then returns to his vehicle and collects a yellow jerry can, which he carries back in the direction that he took the rubbish. He then returns to his vehicle, replaces the jerry can and moves the vehicle and trailer closer to the mattress wire, before beginning to load the wire onto the trailer. Approximately five minutes later, dark coloured smoke - not present before the applicant's arrival - can be seen drifting from the area where the applicant had been out of camera view. The applicant can then be seen walking back and forth, bringing assorted scrap wire and metal from that area.
16 Police executed a search warrant on the applicant's residence at 9.30 am on 8 August 2018 and arrested him. They seized his utility and a yellow jerry can which appears to be the same one seen in the surveillance footage. The trailer was not present. A further search warrant was later executed at the applicant's rented yard. Police seized the trailer seen at the applicant's residence on 1 August 2018, and also observed several mattresses and cardboard boxes in the yard.
17 During a subsequent record of interview, the applicant denied lighting any fires at the HVP plantation. Among other things, he told police that he had been there on the occasion of the last fire around lunchtime. He said he saw the wire and thought he would go back and collect it. The applicant said he used the trailer, and that he did not think there was any danger of anything happening while it was wet. He said there was a fire burning while he was there, but he did not put it out as it had nothing to do with him. The applicant admitted having jerry cans in his car, and said that he sold the scrap on Monday morning. He told police that people dropped mattresses at his yard, and he would use an angle grinder to strip the covers off them. The applicant acknowledged that the area had burnt a fair distance around and there had been more than one lot burnt there. He said a few trees had their bark singed, but asserted that type of tree will not be affected. The applicant said that he had burnt piles of mattresses on other occasions at a property he had at Gunyah, to get the wire. Prior to 5 August 2018, the applicant said, he had not been to Cochranes Road for six months. When asked about specific dates of other fires, the applicant said that on Sundays he would be visiting a person at Ararat Prison. He denied having left anything behind in the bush when he was there on the occasion of the last fire.
The prosecution seeks to rely on coincidence reasoning
18 The prosecution seeks to rely on coincidence reasoning in the applicant's trial in order to prove the identity of the person who lit the fires. Hence, by a notice under s 98(1)(a) of the Act, the principal fact in issue to which the coincidence evidence relates is:
19 In written submissions before the trial judge, eight 'similarities' were relied upon by the prosecution:
(i) mattresses were set alight on each occasion or the remnants of burnt mattresses were present at the scene of each fire;
(ii) the location of each fire was the same, namely the Hazelwood North plantation ('a relatively confined geographical area');
(iii) the location of each fire is isolated and in an area where the prospects of detection are very limited;
(iv) the [applicant] lived only a short distance (about 13 kilometres) from the location of each fire ('an area which was easily accessed' by the [applicant]);
(v) the [applicant] worked at a yard that was only a short distance (about 14 kilometres) from the location of the fires ('an area which was easily accessed' by the [applicant]);
(vi) the location of each fire and their proximity to the residence and workplace of the [applicant] is relevant to the motive alleged by the Crown, namely, to burn mattresses in order to retrieve the metal from inside;
(vii) all five fires occurred in a relatively short timeframe of 38 days (the last three fires occurring with 15 days); and
(viii) the [applicant] was familiar with the location of each fire and had been there before, although, he told police that the last occasion was six months prior to the fifth fire on 5 August 2018.
20 Various pieces of circumstantial evidence were also relied upon:
(i) the [applicant's] car was observed in the vicinity of where each fire was lit on 8 July 2018 - 10 days after the first fire and seven days prior to the second fire;
(ii) police observed the [applicant's] car loaded with about 12 mattresses and cardboard boxes on 1 August 2018 (one day prior to the fire on 2 August 2018);
(iii) police located about 10-12 burnt mattresses and burnt boxes at the scene of the fire on 2 August 2018;
(iv) there is CCTV footage that depicts the [applicant] at the location of the fifth fire (5 August 2018) and shows actions of the [applicant] that are consistent with someone removing items from a trailer and then smoke that appears to be coming from a fire nearby;
(v) the CCTV footage also depicts the [applicant] in possession of a jerry can at the scene of the fifth fire, the allegation being that accelerant was used to ignite or encourage the fire;
(vi) the [applicant] loads metal and mattress springs into his trailer at the scene of the fifth fire;
(vii) the [applicant] admits to being present at the scene of the fifth fire, although he states that he arrived after the fire had commenced;
(viii) the [applicant] departed the scene of the fifth fire without talking to the police despite their presence along with members of the Country Fire Authority who attended and extinguished the fire while the [applicant] was present at the scene;
(ix) on 8 August 2018, police discovered the trailer of the [applicant] at his workplace ... and it is alleged that it is the same trailer observed by police on 1 August 2018 that contained mattresses and boxes;
(x) on 8 August 2018, police noticed several mattresses and boxes at the workplace of the [applicant];
(xi) on 8 August 2018, police seized the [applicant's] car from his home address ... ;
(xii) on 8 August 2018, police discovered and seized a yellow jerry can from the applicant's home address. That jerry can appears to be identical to the one depicted in the hands of the [applicant] in the CCTV footage of 5 August 2018 (three days earlier);
(xiii) the [applicant] stated in his Record of Interview that he had not been to Cochranes Road (the location of each fire) for six months prior to the fifth fire which, the Crown allege, is in direct contrast to the observations of [a witness];
(xiv) the [applicant] further stated in his Interview that on Sundays during the period of the fires, he was visiting a prisoner at Ararat prison (relevant to fires on 15 July 2018 and 5 August 2018). Although no Notice has been provided by the Defence, this appears to be relied upon by the accused as 'alibi' evidence and, to that end, the Crown will seek to lead this as a lie that goes to both the credit of the [applicant] as well as a consciousness of guilt (a Notice of Incriminating Conduct has been filed and served);
(xv) the [applicant] told police in his Interview that people delivered mattresses to him at his workplace;
(xvi) the [applicant] admitted that he sold scrap metal; and
(xvii) the [applicant] admitted that he had previously burnt mattresses at another location (Gunyah) in order to retrieve the metal contained inside the mattress.
Sections 98 and 101 of the Act
21 Before turning to the judge's ruling, and the contentions of the parties, it is convenient to set out the provisions governing the admissibility of coincidence evidence.
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 -
...
(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.
...
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or 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.
...
23 In his ruling, the judge first set out the relevant factual circumstances relied upon by the prosecution:
[9] First is the dates of the five fires, which were 28 June, 15 July, 21 July, 2 August and 5 August of 2018. The prosecution contends that the temporal proximity of the fires ... are important facts on the question of coincidence reasoning.
[10] Second, the fires all occurred on Cochranes Road ... [T]he evidence establishes that each fire was in close geographical proximity to the other fires. Again, the prosecution emphasised this as an important feature in the evidence going to the question of whether coincidence is improbable.
[11] Third, each fire was deliberately lit.
[12] Fourth, each fire burnt household items which necessarily had to be brought to the scene at some point.
[13] Fifth, and linked to the last point, is that by and large the household items burned were mattresses, the point being that the fires burnt away the fabric and like material leaving a skeleton of metal springs and frames. The other household items burnt were very similar to mattresses being a couch where the fabric was burnt away leaving the metal springs. Also burnt, particularly in the last fire, was an electronic equipment which again left metal as the remnants.
[14] Sixth, the [applicant] operates a scrap metal business in Traralgon which is a relatively short distance, being 14 kilometres or so, from the scene of each of the fires.
[15] Seventh, in his scrap metal business the [applicant] has collected or accepted delivery of mattresses in order to retrieve the metal springs and other like pieces of metal for resale as scrap metal.
24 The judge then summarised the prosecution's submissions, observing that
it is the broad foundation of the prosecution case that the five separate fires in the same general location, in a short timeframe, involving similar items being burned, and being burned for the same purpose, to get scrap metal, means in those circumstances that coincidence cannot explain these fires.
[17] The prosecution contends it is not reasonable to conclude that it is a coincidence that these particular fires were lit when and where they were involving mainly mattress.
[18] The prosecution contend it is improbable that the fires were unconnected, and it all is, or remains, simply just a coincidence. The prosecution contends it is improbable that these fires were the work of more than one person. Further, given the business of the [applicant] and the evidence connecting him to the fifth fire, and to a degree to the fourth fire, the prosecution contend it is improbable that the fires were the work of anyone other than the [applicant].
25 Next, the judge summarised the defence submissions:
[19] In brief terms, the defence contend that the test for admission of coincidence evidence has not been met or the court ought find that to be the case. The defence made clear that given the fact in issue of identification of the arsonist, a high degree of probative value must attach to the impugned evidence. The defence contend that there is no evidence connecting the accused to the scenes or circumstances of fires 1, 2 and 3 and to a lesser degree, fire 4. Also, with respect to fire 5, it is a fire of a different kind, meaning the high test of admissibility is not met with regard to that fire.
[34] The legal principles that I need to apply are the following:
[35] Given the words of s 98, the 'touchstone' of admissibility for coincidence evidence is the similarity in the events or the circumstances in which they occur. ...
[36] That said there is no need for striking similarity or a unique signature, especially in cases where the link is made through the relationship of the accused, or the circumstances of the crime rather than some similar modus operandi.
[37] However, as a caveat to the above proposition, there may be cases or instances within cases where because of the fact in issue and the particular events or circumstances of the case, there is a requirement of a level of distinctiveness.
[38] There is no requirement that the evidence has aspects that establish some sort of underlying unity or pattern or signature or system. Although if there are aspects in the evidence that do show an underlying unity or a pattern of behaviour, then that will assist in establishing that the evidence has significant probative value. ... Where a fact in issue is the identity of the perpetrator more may be required in terms of distinctiveness and where the coincidence evidence is the sole evidence of identification even more distinctiveness may be required.
[40] While the examination of differences in the circumstances of a fire or a particular fire, can be important, a court should not overemphasise differences and descend too far into the minutiae.
...
[42] What follows is that the court is to consider the inferential mode of reasoning guided by the four questions that were stated in CGL v DPP and recently restated in Dempsey. They read as follow:
(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;
[43] Finally, as a general point, the existence of one or more alternative hypothesis put forward by the accused does not operate to diminish the probative value of the coincidence evidence. The task of the court is to consider the coincidence evidence and other evidence to be adduced by the prosecution. The reliability of the evidence is not a matter for the court when assessing whether the evidence meets the required level of significant probative value.
[44] As to the third hurdle, that is, s 101, the High Court in Hughes and in Bauer has made clear that what is conveyed by the term prejudicial effect is that harm will be caused to the accused 'by reason of a risk that the jury will use the evidence improperly in some unfair way'.
27 The judge observed that 'the question is whether the evidence establishes a set of circumstances that unite all the fires'. Do the circumstances 'establish a pattern or connection that makes it more likely that there was one fire-lighter' - the applicant - 'or is coincidence a rational explanation'? In other words, 'the question is whether it is improbable that all fires occurred coincidentally'. And he said:
Given that identification is the fact in issue and given that there is very significant if not sole reliance on coincidence reasoning for the first three fires, the evidence needs to establish powerful unity or connections. It is not necessary that there be striking similarity, but, as was said, in Davies, ... 'the evidence must be of sufficient cogency to the admitted, as proof of the identity of the offender'.[7]
28 The trial judge then identified several factors 'that go to establish the sufficient cogency or unity or connection between these fires', including:
• first, the close proximity of the fires to each other and the relative proximity of the fire scenes to the applicant's workplace and home;
• secondly, 'the reasonably tight timeframe of the fires'; and
• thirdly, in the case of each fire the material burnt was mattresses or similar electrical wire or goods (demonstrating 'a distinctive purpose or motive for the fire being lit').
29 In the judge's view, the 'real importance' of the evidence is that 'the point of the fires is to burn material to get scrap metal', which 'critically connects' the fires to the applicant. The judge said that 'the underlying link of the motive or purpose for these fires, of securing scrap metal, makes it more improbable that there were different perpetrators for these fires', the evidence 'of what was burnt and why establish[ing] a strong unity between all the fires'.
30 Finally, turning to s 101(2), the judge was of the view that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the applicant. There was no risk 'of improper, unfair use of the evidence by the jury'.
31 The applicant's counsel contended that, with respect to the first four fires, there was no direct evidence that the applicant: lit any of them; was present when they were lit; or was complicit with anyone else in the lighting of the four fires. Indeed, there is no direct evidence as to who lit any of those fires.
32 In written contentions, counsel submitted that the evidence on charge 5 'stands in stark contrast to the lack of identification evidence for charges 1 - 4 both [sic.] inclusive'. On charge 5, the evidence demonstrates that the applicant was present prior to the arrival of the CFA, and carried jerry cans to and from his utility. Whilst he was retrieving metal springs smoke can be seen. On the other hand, there is no such circumstantial identification evidence of the applicant having lit the first four fires. In oral submissions, the applicant's counsel conceded that the surveillance footage compelled a finding that the applicant was responsible for lighting the fifth fire.
33 The applicant's counsel submitted both orally and in writing that there is no evidence of a 'high level of similarity' between the fifth fire and the first four. Counsel contended that the modus operandi is different, in that fires one to four involve mattress and debris fires, whilst the fifth fire involves copper from electrical wiring and electrical components. Further, the fifth fire was one metre round, which, so it was submitted, is 'completely different' to the evidence of the fires for each of charges 1 to 4.
34 Given the principal fact in issue at trial will be identification, counsel submitted, 'a high degree of probative value must attach to the impugned evidence'. By applying a test which looked for 'sufficient cogency', so counsel orally submitted, the judge fell into error. In circumstances in which the coincidence evidence is the sole evidence of identification, more distinctiveness is required to establish 'a high level of similarity'.
35 Counsel for the respondent submitted that the judge's ruling was correct. The judge properly applied the statutory provisions, and the principles to be derived from the relevant authorities, to the facts of this case.
36 The respondent's counsel submitted that, although it is not required, the evidence relied upon 'is strikingly similar or signature', so as to make it admissible for coincidence reasoning. In any event, the evidence is admissible because the combined effect of the evidence makes it improbable that all five fires were lit by anyone other than the applicant. The burning of mattresses and other material alone is such a specific distinctive feature that it supports the use of the evidence for coincidence reasoning purposes. When combined with the proximity of the location of fires to the home and work of the applicant, counsel submitted, his possession of a number of mattresses at the relevant time, and his trade in scrap metal, render the use of the evidence for coincidence purposes compelling. When all of the similarities and other supporting evidence is considered, the evidence would properly permit a jury to draw inferences that the five fires were deliberately lit by the applicant. There is nothing about the evidence that demonstrates that a different arsonist was at work.
37 If there is any prejudicial effect that flows to the applicant, counsel submitted, that can be dealt with by careful and thorough jury directions. In this case, the directions would need to address anti-propensity reasoning; the purpose of coincidence evidence; and how to use the evidence relating to one charge when considering other charges.
38 Counsel for the respondent submitted that the similarities are such as to have significant probative value, such probative value substantially outweighing any prejudicial effect upon the applicant.
39 We are not persuaded that the judge's ruling is attended by error. Indeed, we consider it to be correct.
40 The principles applicable to the admissibility of coincidence evidence were discussed in Dempsey, a case in which the prosecution sought to rely on circumstances relating to an alleged murder in order to prove the applicant's commission of an earlier armed robbery. Hence, the prosecution sought to use evidence on the murder charge as coincidence evidence to prove the identity of the person who committed the armed robbery. Ultimately, this Court determined that the trial judge's decision to admit the coincidence evidence was not attended by error. The Court (Beach, Kaye and Ashley JJA) - having first set out the provisions of s 98(1) of the Act, and acknowledging that s 101 requires that the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the accused[8] - observed:[9]
Coincidence 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.[10]
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'.[[14]] 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'.[15]
In CGL, the Court specified four questions which need to be addressed in relation to the admissibility of coincidence evidence in the following terms:
(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?
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.
42 As the judge made clear, he was bound to - and did - 'consider the inferential mode of reasoning guided by the four questions ... recently restated in Dempsey'.[17]
43 If the footage from the covert surveillance camera is taken at face value, there can be little doubt that on 5 August 2018 the applicant set the fifth fire, the subject of charge 5. Indeed, as we have indicated, the applicant's counsel conceded in the course of discussion that the evidence that the applicant started the fifth fire is compelling.
44 Thus, surveillance footage shows the applicant arriving at the scene in his utility, towing a trailer loaded with a bath and other rubbish. He is seen in the footage removing the bath and rubbish from the trailer and taking those items to an area out of view of the camera behind the trailer. The applicant then returns to his vehicle and collects a yellow jerry can - it may be inferred the jerry can contained an accelerant - before carrying the can back in the direction that he took the items from his trailer. He is then seen to return, replace the jerry can and move his utility and trailer closer to the mattress wire. The applicant is then seen to load the wire onto the trailer. Shortly afterwards, dark coloured smoke can be observed drifting from the area out of camera view where the applicant had been. The footage then shows the applicant walking back and forth, bringing assorted wire and scrap metal from that area.
45 Moreover, when the CFA officers attended at 1.46 pm, the applicant was still at the scene. He was loading scrap metal, including mattress springs and wire, onto his trailer. A CFA officer observed there had been three fires, each approximately one metre in diameter. These fires each contained metal, copper and electronic components. The applicant told the CFA officer that he had been present for only 10 minutes, and that the fire was already going prior to his arrival. Quite plainly, these assertions were false.
46 As we have said, the principal fact in issue in the pending trial is the identity of the person who lit the fires. As we have also mentioned, counsel for the applicant realistically conceded that the surveillance footage compelled a finding that the applicant was responsible for lighting the fifth fire. In our view, once it is accepted that the applicant set the fifth fire, that finding necessarily compels the conclusion that the evidence of all five fires - '2 or more events' - is admissible to prove that the applicant 'did a particular act'; that is, in each case, light the fire. The 'similarities in the events [and] the circumstances in which they occurred' render it 'improbable that the events occurred coincidentally'. Moreover, it is clear that, taken at its highest,[18] the probative value of the evidence - 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'[19] - is 'significant', and 'substantially outweighs any prejudicial effect it may have on the [applicant]'.
47 In essence, the trial judge considered that there were a number of similarities in the lighting of the various fires and the circumstances in which that occurred which rendered it improbable that the fires occurred coincidentally, including: the close proximity of the fires to each other and the relative proximity of the fire scenes to the applicant's workplace and home; 'the reasonably tight timeframe of the fires'; and that the material burnt in each case was mattresses or similar electrical wire or goods.[20] We, too, consider that the temporal and geographical connection between the fires, and the apparent motive underlying each one - to harvest wire and scrap metal - makes it improbable that the fires occurred coincidentally. In our view, the coincidence evidence sought to be relied upon by the prosecution is capable of rationally affecting the jury's assessment of the probability of the fact that the applicant was responsible for lighting each fire. The capacity of the evidence to do so is significant, and substantially outweighs any prejudicial effect it may have on the applicant.
48 In light of the foregoing, there is no substance in the proposed grounds of appeal.
49 It would therefore be an exercise in futility to grant an extension of time.
50 The application for an extension of time within which to file a notice of application for leave to appeal against the interlocutory decision is refused.
[1] To avoid the possibility of prejudice in the applicant's trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
[2] Section 201A(1) of the Crimes Act 1958, which provides:
201A Intentionally or recklessly causing a bushfire
(b) is reckless as to the spread of the fire to vegetation on property belonging to another -
is guilty of an offence and liable to level 4 imprisonment (15 years maximum).
[5] Davies v The Queen [2019] VSCA 66 ('Davies'); Tognolini v The Queen (2011) 216 A Crim R 188 ('Tognolini'); IMM v The Queen (2016) 257 CLR 300 ('IMM'); Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 ('Hughes'); R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 ('Bauer'); R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; Vagg v The Queen [2020] NSWCCA 134; TL v The Queen [2020] NSWCCA 265; Dempsey (a pseudonym) v The Queen [2019] VSCA 224 ('Dempsey'); PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146 ('PNJ'); CW v The Queen [2010] VSCA 288; CV v The Queen [2014] VSCA 58; Selby v The Queen [2017] NSWCCA 40; and CGL v DPP [2010] VSCA 26; (2010) 24 VR 486 ('CGL').
[9] Ibid [66] (citation as in original).
[10] 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').
[12] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 390-1 [31] ('Papamitrou').
[13] Dempsey, [69]-[71] (citations as in original).
[14] Compare Semaan v The Queen (2013) 39 VR 503, 510-11 [37]-[38] (Priest JA).
[15] [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].
[16] CGL [2010] VSCA 26; (2010) 24 VR 486, 493 [22] (emphasis in original). See also CW [2010] VSCA 288 [7].
[18] IMM, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).
[19] See the definition of probative value in the Dictionary to the Act.
Patton (a pseudonym)
The Queen [2021] VSCA 104
(2016) 257 CLR 300
(2017) 263 CLR 338
(2018) 266 CLR 56
(2010) 27 VR 146
(2013) 39 VR 503
(2014) 45 VR 680
(2009) 273 ALR 286
(2010) 24 VR 486
(2015) 44 VR 652
(2004) 7 VR 375