He added:
"The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial." (p 529)
74 I have set out these passages at some length, because, it seems to me, the criteria for admission of similar fact or propensity evidence at common law that emerges is the test that has been adopted, slightly adapted, and re-stated in s101(2). The addition of the adverb "substantially" is not, however, to be overlooked. The point of this exercise is to demonstrate that, as the common law and statutory tests are essentially of the same kind, decisions as to admissibility made under the common law are not rendered redundant in relation to decisions as to admissibility under the Evidence Act, and that guidance may be obtained from the reasoning in previously decided cases.
75 That leads me back to a number of additional passages to be found in the judgments in Pfennig. The majority wrote:
"Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. In particular, it was recognised that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them." (481)
"… evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds it prejudicial effect." (p 483)
"Often that high level or degree of cogency is found in the striking similarity, underlying unity or 'signature' pattern common to the incidents disclosed by the totality of the evidence." (p488)
76 One passage from Sutton (supra) may also be quoted. Brennan J (as he then was) wrote:
"Striking similarity between the alleged similar fact and the fact to be proved inferentially is a frequent, but not the only, indication of that cogency or that probative force which is required if the evidence is to be taken out of the primary exclusionary rule." (p549)
77 With these principles in mind, I turn to apply the test as stated by the majority in Pfennig. Perhaps rather incongruously, it became necessary to make an evaluation of the evidence which was similar to, or the same as, that which a jury would, if the evidence were admitted, be required to make. But the approach is quite different. That is because, ordinarily, (as in the present exercise) the judge ruling on whether the evidence is to be admitted or not will perform the evaluation on the basis of witness statements or written outlines of the anticipated evidence. The assessment of the probative value of the evidence is less an assessment of the credibility or reliability of the witness (although I do not discount the possibility that that may at times be required), but an assessment of the probative value of the evidence in the context of the evidence of the case as a whole, and on the assumption that the witness is accepted by the jury as credible.
78 Performing that function, I found myself quite satisfied that the evidence meets the stringent test required. I started with the proposition put by counsel for the accused, which is plainly correct, that the evidence will have an enormously prejudicial effect on the accused. To put before a jury evidence designed to establish that an accused person has committed not one, but seven sexual assaults, all having similar characteristics, would be to put a very strong case indeed. The evidence of the offences relating to each individual victim would gather strength from the evidence relating to each of the others. I was under no illusion about the potential prejudicial effect of the evidence of tendency and coincidence. The evidence in relation to each attack would magnify the evidence in relation to each other attack.
79 However, the phrase "prejudicial effect" is apt to create a false impression. All evidence tendered against an accused is intended to have a prejudicial effect, in the sense that it is intended to be part of the evidence which establishes guilt. So it is in the present case. The evidence in question potentially has a powerful prejudicial effect because it tends to establish that the accused was guilty of these very serious offences.
80 It is against that powerful prejudicial effect that the probative value of the evidence must be weighed, keeping firmly in mind that, before it could be admitted, the probative value must not only outweigh its prejudicial effect, but do so substantially.
81 As I have observed above, performing the exercise required involves making an assessment of the probative value of the evidence in the absence of an assessment either of the credibility or the reliability, of the various witnesses, and in the absence of hearing any cross-examination of the Crown witnesses, including those who are expected to give expert evidence. I have no idea what contrary evidence might be produced on behalf of the accused. There are, apart from the tendency and coincidence evidence now under consideration, some important aspects of the evidence to which brief reference should be made (more detailed reference to these matters is to be found elsewhere in this judgment). The Crown has tendered DNA evidence which, on its face, must be taken, virtually unanswerably, certainly overwhelmingly, to implicate the accused in the offences against Complainants 1 and 6. If the tendency and coincidence evidence were considered by the jury sufficient to demonstrate that the same person was responsible for any other attack, then the DNA evidence establishing (if the jury so finds) the accused's guilt of those offences will also operate to strengthen the Crown evidence against the accused in relation to that other attack. To the DNA evidence may be added evidence of the nature of the offences against Complainants 1 and 6, the circumstances in which the offences were committed, the details of conversation, robbery and so forth. Those details are available to link the accused with offences against other victims, to establish that it was the same person who attacked those other victims. The result is that, in the context of the evidence overall, the probative value of the tendency and coincidence evidence (assuming it to be accepted by the jury) is greater even than its admittedly mighty prejudicial effect.
82 For those reasons, s 101 does not operate to preclude the admission of the tendency and coincidence evidence.
83 In relation to this evidence, counsel finally invoked ss 135 and 137, contained in Part 3.11 of the Evidence Act, which is headed "Discretion to Exclude Evidence".
84 S 135 confers a true discretion to exclude evidence in either civil or criminal cases, in the circumstances herein outlined. The section provides:
"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."
85 I did not understand any argument to have been advanced that either paragraph (b) or (c) has application. The argument centred upon the contention that the evidence would be unfairly prejudicial, and that its probative value would be substantially outweighed by the unfair prejudice created. This raises a slightly different issue from that raised by s 101, where the prejudice, to warrant exclusion of the evidence in question, is not required to be "unfair". Nothing that would render the evidence "unfairly prejudicial" as distinct from "prejudicial" was identified. The mere fact that the evidence strengthens the Crown case does not make it unfairly prejudicial. "The concept" of "unfair prejudice" is concerned with, for example, evidence that an accused person might not be able to meet, or that is likely to have an uwarranted impact on a jury, or lead to improper modes of reasoning. I am unable to perceive any unfair prejudice that might accrue to the accused from the admission of the evidence in question, such as to outweigh its probative value. The precondition to the exercise of the discretion conferred (that the balancing process results in a conclusion that the danger of unfair prejudice substantially outweighs the probative value of the evidence) has not been established, and, accordingly no occasion arises for the exercise of the discretion envisaged by s 135.
86 S 137 applies only in criminal proceedings. It does not, strictly, confer a discretion, but requires yet again an evaluative process which is akin to the exercise of a discretion. Where the evaluative process results in a conclusion that the probative value of the evidence in question is outweighed by the danger of unfair prejudice to the accused the court is obliged to reject the evidence.
87 For the reasons given above, I can see no danger of unfair prejudice to the accused by the admission of the evidence in question. I can, on the other hand, as indicated above, see great probative value in the evidence. S 137 does not avail the accused.
88 That concludes the matters raised in opposition to the admission of the evidence the Crown proposes to call as tendency and coincidence evidence. I ruled that the evidence, being relevant, probative, and not excluded by any provision of the Evidence Act, it would be admitted in full.