R v John George BORG, Douglas John Frederick CARROLL, Wayne Frederick FEAR No.1. BORG: Crown Application for Coincidence Direction

Leave

1. The Crown have served and filed in court this morning a Notice stating that they wish to use the evidence at trial about the 15 November incident to prove more than a classic circumstantial case involving reliance on improbability of the two events occurring coincidentally. The formal Notice came very late but it could not have been, and was not, a surprise to the defence. In fact, determination of the issue is made easier as often the probative value actually to be assigned to the evidence relied on cannot finally be determined until all of the evidence in the Crown case is complete.
2. The Crown was required to give reasonable notice: s 98(1(a) Evidence Act. The Court is however given power to dispense with Notice requirements and direct that the coincidence rule not apply to particular evidence: s 100(2). A leave determination is also subject to s 192 Evidence Act.
3. The requirement for notice, and notice well before trial, is an important one. Here however the apparent issues were known before trial. There was no excuse for the lack of notice. That said, I can see no prejudice to the defence in the formal requirements being dispensed with. The evidence was properly admitted. The only issue the Notice goes to is what that evidence can be used to prove and how the Crown can deal with it in address. If leave is granted it will not add unduly to the length of the trial as the defence were from the outset well aware of and able throughout the trial to meet the issues raised.

Sections 98 and 101 Evidence Act

1. The evidence to be relied on has been admitted. The issue is what that evidence can be relied on to prove. Attention to the language of s 98 enables focus on the precise logical connection between how the evidence is to be relied on and the elements of the offence charged: Saoud v R [2014] NSWCCA 136 [40] to [48]. My task is to decide: "Whether the proposed evidence would have "significant probative value"; that is the capacity of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue to a significant degree": JG v R [2014] NSWCCA 138 per Simpson J at [105]
2. "Probative value" is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Evidence Act, Dictionary.
3. In a criminal case, for the purposes of s 98, the assessment of probative value may take into account any alternative explanation inconsistent with guilt, of which there is a real possibility: R v MR [2013] NSWCCA 236, Beech-Jones J at [71] citing DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158: Here the alternative hypotheses, as was opened to the jury by Mr Buckman, is clear- the Crown cannot exclude the possibility the destruction of the Mazda in the second fire was a coincidence.
4. In the assessment of probative value it is no part of the judge's function to embark upon an assessment of the credibility of the evidence. That is, and remains, within the province of the jury: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [167]. In a criminal case, a further assessment is required: to be admissible under s 98, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant: s 101(2).
5. In determining both the s 98 and s 101 issues consideration must being given to the evidence as a whole: R v MR at [77]. There is no requirement that the events or the circumstances in which they occurred have "striking" similarities or the like: R v MR at [76]
6. At the stage the application was made the defence had not called evidence or adduced any evidence, their position was however clear - the Crown had not excluded the possibility the 29 November 2012 incident was a coincidence. I do not regard a bare assertion or absence of challenge to evidence in the Crown case as adducing evidence. The Crown had however, in its case, sought to contradict the defence contention. Accordingly, s 101(4) does not apply and the Crown evidence must have substantial probative value before it can be used for the purposes asked for in the coincidence notice.
7. As Mr Buckman correctly points out, prejudice potentially may arise here if the jury engage in simplistic propensity reasoning without considered analysis of the evidence. That is, they may reason: Borg committed a criminal act in relation to the Mazda on the 15th, if he did it once; he did it again on the 29th.
8. The jury must be warned against such reasoning. That said, the juries proper use of the evidence compels directions that ensure that both the Crown and the defence propositions be understood by them. Section 98 does not allow for simple propensity reasoning by the jury, rather it sets out clear parameters which must be adhered to. A proper direction, which the jury must be presumed to apply, can avoid unfairness to either party and focus them on the cases for the Crown and the defence.
9. As Justice Beech-Jones noted in R v MR at [64], the rule created by s 98(1) does not apply to all forms of probabilistic reasoning that seek to disprove a contention that various things may have happened coincidentally. Not all coincidence cases necessarily engage s 98(1). Here, however, the Crown say the jury should be entitled to reason that it was improbable that the two events occurred coincidentally "having regard to any similarities in [those] events or the circumstances in which they occurred." They must do so in order to rebut the defence contention of genuine coincidence. They can only do so if all reasoning options and their potential problems are left open and explained to them.

Assessment of the evidence

1. The "similarities" between the two events and the circumstances surrounding them are identified as Borg's acting to incite others to damage his car for the purpose of making an insurance claim. The particular act or state of mind that it is said that the evidence of the events proved, is Borg's desire to claim insurance upon his vehicle being written off. Both conclusions are readily available from the evidence in the Crown case taken at its highest.
2. The evidence relied on includes: 1. Borg's plea of guilty and committal for sentence for the charge arising out of the 15 November 2012 incident: Exhibit 59 2. That others were incited to damage his car on the 15 November 2012: Evidence Constable Zammit, TT p 1-6, Exhibits 1-5. 3. That he did make enquiries to see if his car was written off after that incident: Evidence Kelly Greenhill, TT415 -420 4. Phone call charge records from phones registered to Borg, Carroll and Fear showing a connection between the men at the relevant times: Exhibits 53, 54 and 55 5. Telephone intercepts indicating, at its highest, discussion of both incidents: for example Exhibit 50 (b), transcript Product 4352, at 3 of 3.

Conclusion:

1. Here the evidence relied on to found the application is capable of rationally affecting the probability of the existence of a fact in issue. There is likelihood that the jury will assign the evidence significant probative value.
2. Here the suggested similarities between the identified events and their circumstances are strong. They do have the capacity to be of importance or of consequence in establishing the propositions advanced by the Crown: R v Lockyer (1996) 89 A Crim R 457. See also DSJ at [60]. There is potential for prejudice but that prejudice can best be met not by asking the jury to close their minds to a line of reasoning clearly available to them but rather by instructing them how the evidence can be properly used and of its limitations.
3. To deny the Crown the opportunity to prove part of their case by telling the jury not to engage in the particular form of probabilistic reasoning, envisaged by s 98, would deprive the Crown of something essential to the proper presentation of their case. To deny the jury the opportunity to consider the evidence in the light of those submissions would, with respect, invite them to ignore a rational and compelling conclusion able to be drawn from the evidence. It would involve them compartmentalising their reasoning in a way they might regard as absurd. It would also mean that proper warnings about the dangers of simple propensity warnings could not be put in proper context.
4. At the close of the Crown case against Borg the jury are left with evidence of two relevant events; one on the 15 November 2012 the other on the 29 November 2012. The evidence leaves the jury with two alternative propositions: The defence proposition that the events occurred coincidentally and the Crown proposition that it is "improbable that the events occurred coincidentally" and are instead explicable by reason of the act of Borg and or his state of mind. The Crown, of course, has the onus of proving Borg's involvement in both these events.
5. The statutory tests in s 98 and 101 Evidence Act have both been satisfied. The evidence led at trial and the issues raised can only be addressed by allowing the Crown leave to use the evidence to prove the two events on the 15 and 29 November 2012 events did not occur coincidentally.

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