and, under s 137, it is bound to refuse to admit the evidence if " its probative value is outweighed by the danger of unfair prejudice to the defendant".
73 The "probative value" of evidence is defined in the Dictionary to the Act as "…the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" - here the probability that the death of each child, and of Patrick's ALTE, was due to asphyxiation. The inclusion of the word "rationally", in the definition, is of importance, having regard to the need for consideration to be given, both to the force of the evidence, and to the question of unfairness associated with any risk of it being used in a way that is not logically connected with the relevant issue, or of it being given undue weight in the resolution of that issue: R v Lockyer (1996) 89 A Crim R 457 at 460, and R v Colby [1999] NSWCCA 261.
74 In R v Lockyer, Hunt CJ at CL (at 459) held that the expression "significant" when used in conjunction with the expression "probative value" meant "something more than mere relevance but something less than a 'substantial' degree of relevance". I would respectfully adopt the observation of Ireland AJ in R v Martin [2000] NSWCCA 332 (at para 67) that its use, in s 98 and also in s 97 (tendency evidence) mandates that the evidence be of importance, or of consequence.
75 At common law, evidence falling within the umbrella of coincidence evidence, there referred to as similar fact evidence, was admissible if it possessed "a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged" per Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 294. Their Honours went on to say, at 294-5:
" Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Perry v The Queen; Sutton v The Queen; Reg v Boardman. That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution." (Citations supplied).
76 In Pfennig v The Queen (1995) 182 CLR 461, a case concerned principally with propensity evidence, but equally applicable to coincidence evidence, Mason CJ, Deane and Dawson JJ, after referring to Hoch, went on to say, in relation to the passage last cited, (at 482):
" This passage should not be understood as asserting that 'striking similarities' or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.
An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute. Thus, their Honours said [in Hoch]:
'Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.'"
77 This has a relevance for the present case in that, so far as I can see, the matters said to constitute similar facts are not themselves in dispute to any extent, if at all, as distinct from the conclusions to be drawn from them.
78 Additionally their Honours said, in relation to the question of the potential prejudicial effect of the evidence of this kind (at 482):
" the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused."
79 In carrying out the weighing of the probative force of the evidence, against its prejudicial effect, they observed that (at 483):
" the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect."
80 In R v WRC [2002] NSWCCA 210, Hodgson JA said, in relation to this passage, again in a case involving tendency evidence, but of equal relevance for coincidence evidence:
" 27. Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.
28. On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of propensity evidence.
29. In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence."
81 To those observations his Honour adhered in R v Joiner [2002] NSWCCA 354 at para 37. Reference may also be made to Pfennig, Lock and R v AH (1997) 98 A Crim R 71 at 78, in support of the proposition that the evidence must be excluded unless, when taken in conjunction with the remaining evidence, the only rational explanation is the inculpation of the accused for the offence in question.
82 It is next convenient to apply these principles to the evidence which the Crown expects to lead. As I currently understand that evidence, it will be the expert opinion of each of Drs Ophoven and Beal, and of Professors Berry and Herdson, that each child died of intentional suffocation. Drs Ophoven and Beal reach that conclusion without qualification, while Professors Berry and Herdson express that view as a probability.
83 The other experts, including Dr Cala, and Professors Byard and Busutill fall somewhat short of this, although they accept that deliberate smothering or induced asphyxia, cannot be excluded in any one of the 4 deaths or in Patrick's ALTE. What all experts do appear to exclude, in the light of what is now known, however, as a cause of any of the deaths or of Patrick's ALTE, is SIDS, or any underlying congenital metabolic abnormality. Moreover, while some other possible medical conditions have been identified, none of the experts are prepared to ascribe, as the cause of death or of the ALTE, any natural disease process, to the exclusion of other possible causes, including smothering.
84 The defence submitted that the Crown faced a logical difficulty in that it has to rely upon a concatenation of events, in order to prove the cause of death in each case, being unable to show positively by reference to the evidence concerning any one death, that it was due to induced asphyxia. If it could do so then, as I understand the defence position, it would accept that the argument for calling the evidence, in relation to all counts, would be that much stronger, since it would then be capable of excluding mere coincidence or accidental death.
85 The answer to that submission, in my view, lies in the approach taken in R v Clark, and in R v WRC, elsewhere mentioned in these reasons, bearing in mind, in particular, that this aspect of the Crown case, although very important for proof of the accused's guilt, is but one circumstance in a circumstantial case.
86 The associated defence submission to the effect that coincidence evidence is only admissible if it is sufficient in itself to prove beyond reasonable doubt that the accused is guilty is, in my view, misconceived. For the reasons stated in WRC (at para 29) and in Joiner (at para 37) cited earlier, it overstates the requirement for admissibility, since it is necessary that the coincidence evidence be considered in the light of all the remaining evidence.
87 Mr Zahra SC also submitted that there was a danger in relation to the medical evidence, if it be the case that the experts had formed their ultimate opinion by reference to a mantra expressed in the terms of one death equals SIDS, two deaths equals unascertained cause and three deaths equals homicide, unless otherwise explained.
88 Clearly, any such reasoning, or any reasoning based only upon an exercise of statistical probability, would be potentially misleading and capable of weakening the probative force of their evidence. However, that would not, in my view, prevent the experts from giving evidence to the effect that SIDS is a relatively infrequent event, and that multiple SIDS deaths and/or multiple unexplained deaths or ALTE's involving infants within any one family are even more infrequent.
89 Subject to appropriate qualification as to what is included, and what is not included in the medical literature upon this topic, I would see no objection to reference being made to it concerning the occurrence of SIDS. Similarly I would see no objection to the experts expressing an opinion, subject to the same qualification, as to the improbable occurrence of multiple deaths of infants or of ALTE's, within the same family, of unexplained causes, that is, absent some common genetic disorder.
90 I would not however regard it as appropriate for the likelihood of any such occurrence to be expressed in the terms of statistical odds, since that could give rise to a risk of those odds being misused in a way similar to the Prosecutor's fallacy which has been exposed, in relation to DNA evidence.
91 It was accepted by Mr Zahra SC that the ultimate issue rule of the common law, having been repealed by s 80 of the Evidence Act, does not preclude the medical experts from offering their opinions as to the causes of each death. Clearly that is so in relation to an opinion offered for example that it was due to an hypoxic event, or was one which was consistent with asphyxia. However, what they cannot do is to take the next step, which is properly one of fact for the jury, and not one dependent upon the medical or scientific expertise which each clearly has, to offer the view that it was the accused who induced that event, or that the death amounted to homicide. The final step is one which relies upon circumstantial proof from the factors previously identified.
92 This may require some modification of the opinion as to the ultimate issue offered in particular by Dr Beal and Professor Ophoven. It would not, however, limit their evidence as to any or all of the deaths as being consistent with, and as possibly or even probably due to induced asphyxia.
93 Considerable reliance was placed by the defence upon the decision of Bell J in R v Phillips [1999] NSWSC 1175. That was a case in which the accused was charged with the murder of one of her children, and in which the Crown sought to tender evidence concerning the deaths of two other children who had been born to her, and of a number of ALTE's relating to all three children. It was a case where four matters were said to demonstrate that there was a substantial and relevant similarity between the deaths and ALTEs, namely, that each child was a natural child of the accused; in each case it was she who had located the child, at a time when the child was either not breathing or experiencing breathing difficulties; in each case it had been she who had arranged to take the child to hospital; and in each case the de facto partner of the accused had been "unavailable" in the context of a background of domestic friction. The second and fourth of these matters was not conceded, and Bell J expressed strong reservations as to whether either could be established on the available evidence.
94 The present case is, in my view, distinguishable, since there are here many more matters relied upon as showing a substantial and relevant similarity. Moreover, it is a case where, unlike Phillips, there is independent evidence in the form of the diaries, and Mr Folbigg's evidence, and it is one where, some of the experts expressed their opinions as to the cause of death in far more positive terms than those expressed by the witnesses in Phillips.
95 In this regard Bell J observed (at para 64):
"I did not understand any of the witnesses who gave evidence in the proceedings before me to be of a view other than that the family history of ALTE, and the deaths of the 3 children was highly suspicious".
96 Later her Honour observed that the difficulty which stood in the way of a finding that no rational explanation existed for the deaths and ALTE's, other than that the accused had deliberately induced each incident, was the fact that "none of the expert witnesses was prepared to go so far."
97 The present case differs in this respect. The critical circumstance in this case, and where it seems to me to differ from Phillips, is that it is sufficient for the Crown to point, in each case, to the evidence of each expert which would exclude SIDS as a cause; which would identify the improbability of the various incidental medical conditions which were observed post mortem as the cause of death or of the ALTE's, and which would then identify asphyxia, as a possible or probable cause of death. It appears to me to be enough, in a circumstantial case, for the Crown to establish that asphyxia was a possible cause of death, and that the findings on post mortem examination are, in the opinion of the experts following their independent review, consistent with that having been the causative mechanism.
98 Moreover, so far as it is submitted that Professor Herdson and Dr Ophoven based their opinions upon no more than an assessment of the probability of four deaths within the one family occurring by a mechanism other than the deliberate act of a parent, or by reference to a statistical probability exercise of the kind that met with disfavour in R v Clark, then this seems to me to involve an unjustified attack on the detailed analysis which they brought to each case.
99 I am similarly unconvinced that their opinions are based on any misapprehension of the facts of each matter, or that the process of reasoning foreshadowed by the Crown depends upon the simple proposition that if all four deaths were not SIDS deaths, then they must have amounted to murder. Clearly, any such line of reasoning would be erroneous, because the Crown would still need to exclude, as a reasonable hypothesis, in respect of each count, that the event was not due to some medical condition, or cause other than the deliberate act of the accused.
100 I do not understand the Crown to approach the case on the simple basis suggested, or to suggest that the circumstances giving rise to each death should be considered other than carefully in isolation as well as collectively, and in the light of the remaining circumstantial evidence.
101 Upon my assessment of the evidence which the Crown intends to call, the present case has a close similarity to that of R v Clark [2000] EWCA Crim 54, where the Court upheld the decision of the trial judge, in not severing an indictment charging a mother with the murder of two of her infant children, and in allowing the evidence in relation to each child to be received as part of the Crown case concerning the two counts.
102 It was a case where six principal similarities were relied upon, namely that the two babies had been about the same age at the time of death; they were each found unconscious by the appellant in the same room; they were found at about the same time, shortly after being fed; the appellant had been alone with them when they were discovered lifeless; in each case their father was either away, or about to go away; and in each case there was evidence (although this was, admittedly, contentious) of previous abuse or of deliberate injury.
103 The central issue for each count was whether the Crown could exclude death by natural causes. Similarly to the present case, the effect of the medical evidence as a whole was that neither baby had been the subject of a SIDS death, and there was a consensus, as the lowest common denominator, that each death was unexplained, but was consistent with an unnatural death.
104 Again, similarly to the present case, the medical evidence was not regarded as standing alone so far as there were matters of potential significance in relation to the credibility of the evidence of the parents. The Court concluded, after an analysis of the evidence (at 89):
" The Prosecution's case against the appellant depended on a large number of pieces of circumstantial evidence, including not only the medical evidence concerning each baby but also evidence going to the credibility of the appellant and her husband. In that context the various similarities referred to by the judge could properly be relied on as supporting the Prosecution case and as tending to prove the appellant's guilt on each of the counts. They made an explanation based on coincidence very much less plausible, if not an affront to commonsense. In any event it would have been an affront to commonsense to require the jury to consider only one of these deaths in isolation from the other. The overall circumstances of the two deaths were plainly relevant to the assessment of guilt in respect of each of them".
105 In the course of its reasons, the Court rejected the proposition that even if the evidence on one count was admissible upon the other, it could only become admissible once the jury had concluded that the first death was unnatural upon the evidence relating to that count alone - holding (at para 90) that the decision of the House of Lords in DPP v P [1991] 2 AC 447 did not lay down such a high hurdle. Their Lordships went on to say (at 90):
" such evidence can have sufficient probative force to make it just to admit it even though, taken by itself, it would not be sufficient to prove guilt. Proof of guilt depends on the combination of the evidence admitted on grounds of similarity and the other evidence in the case."