R v Nassif

He then said: "I am satisfied that the circumstances of these four crimes are of striking similarity. Each is inherently bizarre involving assaults upon young women in broad daylight with the use of a car and apparently with a motive of sexual intent. No disguise was involved except the use of head gear. The stolen Ford cars were apparently used in each case. I conclude that the provisions of s97 and s98 are satisfied. S101 must be satisfied in that the probative value [of] the evidence must substantially outweigh any prejudicial effect it may have on the accused. This is a case which will require the jury to decide whether it is satisfied beyond reasonable doubt that one offender was responsible for those four activities (or some of them) if the counts are allowed to stand. The next question would be - was the accused that person, if the answer to the first question was yes? The second question raises the matter of identity, and the Crown would be obliged to satisfy the jury beyond reasonable doubt on that issue if all verdicts of guilty could result." 23 By his application for leave to appeal, the applicant identified as "matters justifying the grant of leave to appeal" the following: "(a) to permit the trial to proceed on the proposed indictment when the Crown relies on evidence of tendency and coincidence as admissible on each count would result in a miscarriage of justice. (b) the jury is likely to give to the evidence of identification more weight than it deserves and thus divert the jurors from their task." 24 He identified the following proposed grounds of appeal: "1. His Honour failed to deal with all the circumstances relied upon by the Crown in support of the proposed indictment and the evidence as to tendency and coincidence. 2. His Honour failed to deal adequately with prejudice in terms of ss101, 135 and 137 Evidence Act 1995 . 3. His Honour failed to deal with the evidence of identification comprehensively and in his brief reasons dealt with it unsatisfactorily."

25 Before dealing with the proposed grounds of appeal, it is worth taking a moment to consider precisely what was involved in the application in the District Court. S29 subss(1) and (3) of the Criminal Procedure Act 1986 provide: " 29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences ... may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 26 S29(3) enacts in statutory form what has long been a principle of common law: see also s21(2). The interests of justice will require separate trials where, inter alia, a joint trial could or would not be fair. S29(1)(c) can only sensibly be read as a reference to the nature of the allegations made by the Crown, i.e. as though the sub-paragraph read: "the offences are alleged to form or are alleged to be part of a series of offences ..."

Any other construction would import a pre-trial finding that offences charged had been proved. 27 Plainly the applicant did not consent to the joint trial of all charges; and the Crown does not appear to have suggested that the offences arose out of the same set of circumstances. Sub-paras (a) and (b) of subs(1) can be put to one side. 28 In the District Court, counsel for the applicant argued that the offences were not alleged to form or be part of a series of offences of the same or a similar character. I will return to this question. 29 In respect of a trial involving allegations of sexual offences against three separate complainants, the High Court has held that the charges ought not to have been heard in a single trial: Hoch v The Queen [1988] HCA 50; 165 CLR 292. That was because, in the jurisdiction where the charges were laid, the evidence admissible in support of the allegations in respect of any one complainant was not admissible in respect of the trial of the allegations involving any other complainant. The High Court based this decision on the principles relating to the admissibility of similar fact evidence and held that the probative value of the evidence in that case was diminished by reason of the possibility of the complainants having concocted their accounts. 30 In the majority judgment (Mason CJ, Wilson and Gaudron JJ) the following appears: "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: ... 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." (pp 294-295)

That case, no doubt, was the source of the phrase "of striking similarity" used by Shillington ADCJ. 31 In NSW, cases such as Hoch have to be read subject to the provisions of the Evidence Act 1995, specifically (for present purposes) ss97, 98 and 101: R v OGD [No 2] [2000] NSWCCA 404; 50 NSWLR 433; R v Ellis [2003] NSWCCA 319; 58 NSWLR 7000; 144 A Crim R 1, and the cases there cited.

32 S97 of the Evidence Act relevantly provides as follows: "97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) ...; (b) the court thinks that the evidence would not, 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." Subs(2) provides for exceptions which are not presently material. 33 S98 relevantly provides as follows: "98 The coincidence rule

(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) ...; (b) the court thinks that the evidence would not, 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.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar." Subs(3) provides for exceptions which are not presently material. 34 S101 relevantly provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." Subss (3) and (4) provide for not presently material exceptions.

35 On my analysis, the applicant's application in the District Court raised two primary issues for determination:

(i) the s29(1)(c) question: that is, whether the offences charged were alleged by the Crown to form or be part of a series of offences of the same or a similar character;

(ii) if so, whether, in the interests of justice, the charges relating to each of the complainants ought to be heard and determined separately from the charges relating to each other complainant:

The argument in the District Court proceeded (correctly) on the basis that resolution of the second issue depended essentially upon the admissibility, by reference to ss97, 98 and 101 of the Evidence Act , of the evidence of the allegations concerning any one complainant in the trial of the allegations concerning any other complainant. 36 I should mention here one complicating factor. The transcript of the argument in the District Court strongly suggests that Shillington ADCJ was not expecting to be the trial judge. Questions of the admissibility of evidence are questions committed to the trial judge. Ss97 and 98 explicitly commit to "the court" - meaning the trial judge - the evaluation of the probative value of the evidence tendered. The admissibility of the evidence is determined by the outcome of that evaluative process. S101 requires an evaluation of the probative value of the evidence relative to its prejudicial effect. This, too, is an evaluation to be made by the trial judge. Subs(2) requires that a decision be made about the use to which evidence can be put based upon that evaluation. That strongly implies that the decision contemplated is that of the trial judge. Indeed, in its terms ("tendency ... or coincidence evidence ... that is adduced by the prosecution ..."), s101(2) appears to envisage that the evidence be adduced before the evaluation is made. The prohibition in s101 is on the use that can be made of the evidence, not its admissibility. I will return to the construction of s101(2) (see [43] - [44] below). 37 Shillington ADCJ was, therefore, not called upon, and could not have been called upon, to make a ruling on whether the evidence on which the Crown sought to rely would be admitted; the best he could do was to make his own assessment, on the material then available, of whether the admission of evidence relating to the allegations concerning one complainant in the trial of the allegations concerning any other complainant would render that trial unfair. The exercise involved, not a ruling on admissibility, but hypothesising separate trials and considering the likely effect on the fairness of the trials of the evidence sought to be tendered by the Crown as tendency and/or coincidence evidence. 38 I say that the exercise involves hypothesising separate trials for this reason. In the event of a joint trial of all sets of charges, there could be no question about the admissibility of the evidence supporting each charge. Thus, for example, the evidence relevant to the charges concerning the complainant MD would plainly be admissible in the trial, as would the evidence concerning the complainant HH, and so on. 39 And the evidence could not properly be characterised as either tendency or coincidence evidence. Those terms are defined in the Dictionary as meaning evidence adduced for the purpose of establishing either tendency or coincidence. In a joint trial the evidence concerning MD would not be adduced for the purpose of establishing either tendency or coincidence; it would be adduced for the purpose of establishing the offences alleged to have been committed against her. 40 The question, therefore, was not whether tendency or coincidence evidence would be admissible in a joint trial, but whether it would be admissible in separate trials. 41 If the assessment were that the admission of such evidence would render the trial unfair, the proper exercise of his discretion required an order for separate trials. If the assessment were otherwise, there would no utility in so ordering, and it would have been appropriate to refuse the application. 42 In making that assessment his Honour was called upon, in almost a predictive way, hypothetically to determine (but not rule upon - that remained the province of the trial judge) the admissibility of the evidence. This involved the hypothetical application of ss97, 98 and 101. 43 Although the exercise was never so characterised, and although his Honour does not appear to have turned his attention expressly to s29, this is, in substance, what he did. His Honour did not expressly answer the first question I have posed, arising from s29(1)(c). However, it is implicit in what he did say (extracted above [21]), that he considered that the offences were alleged to have been part of a series of offences of a similar character. Had he turned his attention directly to that question, he undoubtedly would explicitly have so held. Although some submission to the contrary was put to his Honour, no ground of appeal is raised in this Court that challenges the correctness of this application of s29(1)(c). In my opinion, the conclusion is unchallengable. 44 The issues that arise in relation to s29, and those that arise where the Crown proposes to rely upon tendency and/or coincidence evidence, are related, but they are not the same. 45 The s29 question is directed to the nature of the allegations made by the Crown, and is fairly limited in scope. It has nothing to do with the admission of evidence. The principal questions arising under s97 and s98 involve, in each case, an assessment of the probative value of the evidence sought to be adduced. Admissibility of the evidence depends upon that assessment. Each section is directly concerned with admissibility. 46 Examination of the language of s101(2), particularly when contrasted with the language of ss97 and 98, yields yet another of those mysteries of the Evidence Act that have diverted litigation lawyers, judges and commentators for nigh on a decade. Ss97 and 98 are, in their terms, concerned with admissibility. Unless the evidence under consideration has significant probative value, it is not admissible to prove either tendency or coincidence. 47 S101(2), by contrast, if literally construed, appears to envisage that the evidence is admissible and is admitted ("evidence ... that is adduced by the prosecution ..."), but then to place restrictions - restrictions to the point of annihilation - on the use that can be made of that evidence. Why s101(2) was so framed, is, as I have suggested above, a mystery. The only sensible way to approach s101(2) is to treat it, like ss97 and 98, and almost in defiance of its language, as a rule of admissibility, and put unproductive debate about its terminology to one side. It seems to me that s101(2) has generally been construed as a rule with respect to admissibility. It was, for example, so treated in Ellis: see [54]: "54 The appellant's intention on this appeal was that the Pfennig v The Queen [[1995] HCA 7; 182 CLR 461] was required to be applied in any case in which the exclusionary rule found in s101(2) falls to be applied. ..." (emphasis added) 48 Shillington ADCJ answered the ss97 and 98 questions by declaring himself satisfied that the crimes were "of striking similarity: and concluding that "the provisions of s97 and s98 are satisfied." This was plainly intended to be read as a finding that the evidence would have significant probative value. He answered the s101 question directly, finding that the probative value of the evidence would substantially outweigh any prejudicial effect on the applicant. 49 In both of these conclusions, in my opinion, his Honour was plainly correct. Indeed, the proposed grounds of appeal do not attack the conclusions but rather the process by which his Honour arrived at his conclusions.

the application for leave to appeal 50 Three criticisms are made of his Honour's approach:

(i) inadequate attention to the circumstances of the offences, as alleged by the Crown (this being the evidence going to tendency and/or coincidence);

(ii) inadequate consideration of the question of prejudice, "in terms of ss101, 135 and 137 Evidence Act 1995" ;

(iii) failure to deal comprehensively with the identification evidence.

(i) "... the circumstances relied upon by the Crown ... as tendency and coincidence evidence": 51 Tendency and coincidence evidence are frequently referred to in the same breath, as though they were conjoined twins. However, they are not necessarily so interlinked, and there will be cases where evidence of tendency will be admissible when evidence of coincidence is not, and vice versa. In some cases, the sections may be used interdependently, or as the obverse of one another. For example, in a case such as the present, the Crown may wish to proceed by arguing that, if a jury found the applicant guilty of any one count, they could use his guilt of that offence in considering his guilt of any other offence, as evidence of his tendency to commit such crimes: and successive findings of guilt as accumulating or strengthening evidence of such a tendency. That would be true tendency reasoning. The more numerous the claims of tendency evidence, and the more specific, the stronger the probative value, and thus the more likely the admission of the evidence. 52 Alternatively, the Crown might argue, in terms of s98, that the applicant was guilty of all offences because of the improbability of the events occurring coincidentally. In this respect the Crown would be entitled, under subs(2), to point to the similarities of the events, and the similarities of the circumstances in which they occurred. Again, the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence. 53 As it happens, in this case, the same evidence would lend itself to either reasoning process. 54 It is true that his Honour dealt pithily with the circumstances on which the Crown relied. However, he did give a short synopsis of each event, and he had before him the comprehensive and helpful tables prepared by the Crown, which I have earlier mentioned. His description of the crimes as "of striking similarity" was apt. In so describing the offences, he made reference to some, but not all, of the circumstances to which the Crown pointed as supporting the admissibility of coincidence evidence. He observed that a jury (that is, a jury empanelled in a single trial of all counts) would be required to decide whether it was satisfied beyond reasonable doubt that one offender was responsible for all or some of the four offences against the person. That is the same question that would arise, if tendency and/or coincidence evidence were admitted on separate trials. 55 This is an overwhelming case for the admission of both tendency and coincidence evidence. This can best be seen from my outline of the circumstances relied upon by the Crown in [11] to [15] above. In this view, I do not intend to bind any future trial judge; whether the evidence is to be admitted will be a matter for the judge to whom the trial is allocated. However, having regard to the exercise that Shillington ADCJ was required to undertake, I am satisfied that his conclusion was correct.

(ii) prejudice 56 Again, it is true that there is little reference to any specific prejudice arising from the tendency/coincidence evidence to be found in the short reasons for judgment. However, that, in my opinion, may be attributed to two circumstances: firstly, that it is obvious that there will be some prejudice to the applicant by reason of the submission to the jury of evidence not of one, but of four sets or pairs of offences. That is why both ss97 and 98 require, as a prerequisite to admissibility, that the evidence have significant probative value. That is also why s101 requires that a further step be taken of evaluating the probative value of the evidence against its prejudicial effect and requiring it substantially to outweigh that prejudicial effect before it may be used against an accused person. 57 The second reason that no mention was made of specific prejudice is that none was identified in the submissions put to Shillington ADCJ. Nor was any identified in this Court. I have, therefore, come to the view that it was not necessary for his Honour to make any more reference than he did to issues of asserted prejudice within the meaning of s101. 58 Counsel for the applicant relies also upon ss135 and 137 of the Evidence Act. These sections are well known, but it is worth restating them. They are as follows: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time."

" 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 59 Under s135 only subpara (a) could here be relevant. The s101 exercise resulted in a conclusion that the probative value of the evidence substantially outweighs its prejudicial effect. The question s135 poses turns that question around and requires an assessment of whether the danger of unfair prejudice substantially outweighs the probative value of the evidence. If it is found to do so, the section contains a discretion to refuse to admit the evidence. A similar, but not identical, question is posed by s137. That question is whether the probative value of the evidence is outweighed (not necessarily substantially) by the danger of unfair prejudice. If it is found to do so, the court is obliged to refuse to adduce the evidence. The difference between the two sections is to be explained by the fact that s135 is a section of general application where s137 applies only to criminal proceedings. 60 Once the s101 question has been answered adversely to the applicant, it is impossible to see how s135 or s137 could have a different result. 61 In a criminal proceeding, where s101 has been applied in relation to tendency and/or coincidence evidence, there is little if any further room for the operation of either s135 or s137. To the extent that they are applicable, assessment was both available and, in my view, correct. 62 Again, his Honour dealt economically with the questions. He said: "I am satisfied that the probative value of the Crown's case as proposed substantially outweighs any prejudicial effect resulting from the counts being heard together. A consideration of s135 and s137 would also lead to the admission of tendency and coincidence evidence."

(iii) identification evidence 63 What his Honour said about identification evidence was this: "I consider a possible ground of prejudice to the Accused would be the use that may be made by a jury of identification evidence from the various complainants by a selective process of characteristics. On the other hand it would seem that a jury, properly instructed, would regard the evidence of identification as slight and differences in the description of the offender by the victims may well assist the Accused in his defence." 64 It is not easy to encapsulate the complaint made on behalf of the applicant of the manner in which his Honour treated the identification evidence. The proposed ground of appeal is, as set out above, of an asserted failure to deal comprehensively with that evidence, and to deal with it "unsatisfactorily". 65 In the written submissions the descriptions given by each complainant were set out and discrepancies between the descriptions given by the various complainants of their attackers highlighted. It does not appear to me that this is a relevant issue in the consideration of whether separate trials should be ordered. Variations amongst complainants in descriptions of their attackers are factual matters which, no doubt, would be drawn to the attention of the jury - in the applicant's favour. Such variations would militate against a conclusion that the same man was responsible for all or some of the offences. But inconsistency of description is not a reason for ordering separate trials. On the other hand, to the extent that the descriptions were consistent, that is a factor relevant to coincidence and renders the evidence admissible if it passes the s98 test. 66 By subs(5) of s5F of the Criminal Appeal Act, this Court: "(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, make give or may make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 67 I am satisfied that the judgment of Shillington ADCJ was correct and should be affirmed. 68 During the course of argument, counsel for the applicant agreed that, if this Court should find error in the approach taken by his Honour, it would be appropriate for this Court to make the determination itself. 69 I do not find any error in the approach taken by Shillington ADCJ. His explanation for his conclusions may legitimately be described as sparse, but there is no reason to believe that he misunderstood any legal principle or overlooked any relevant factual or other consideration. Accordingly, I would affirm his Honour's judgment. It is thus unnecessary to consider whether s5Fpermits this Court to substitute its own judgment for that of Shillington ADCJ, but, to the extent that it does, and were it necessary to decide, I would, on that basis also, affirm the decision. 70 The orders I propose are that:

(ii) appeal dismissed; judgment of the District Court affirmed. 71 ADAMS J: I agree with Simpson J. 72 DAVIDSON AJ: I have had the advantage of reading in draft form the judgment of Simpson J. I agree with the orders proposed by her Honour and with her reasons. 73 I note that Simpson J takes the view that it is likely that Shillington ADCJ is not expected to be the trial judge. In my view severance applications, particularly where they depend upon determination of an issue as to the admissibility of evidence, as this application does, should be dealt with by the judge who is expected to preside at the trial. The possibility of divergent views being formed when more than one judge at first instance deals with a preliminary question is a real one and may produce an unsatisfactory result. 74 Additionally, the question might well arise as to whether the result of the application being brought before a judge other than the judge at trial is a "judgment, order, decision or ruling" within the meaning of s 5F of the Criminal Appeal Act. Because the matter may be raised again before the judge at trial the preliminary determination may be said to be merely an expression of opinion and therefore not to have even the limited finality which an interlocutory judgment, order, decision or ruling requires. However this was not a question raised in this appeal. 75 In my view the reasons given by Shillington ADCJ were adequate to deal with an application such as this in the context of a judge's list in a busy trial court and I agree that they disclose no error.

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