Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Saoud v R [2014] NSWCCA 136 Hearing dates: 5 May 2014 Decision date: 25 July 2014 Before: Basten JA at [1]; Fullerton J at [63]; R A Hulme J at [64] Decision: (1) Grant leave to appeal against convictions entered on 15 March 2012. (2) Dismiss the appeal. Catchwords: APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - whether decision involved a discretionary exercise of power COURTS AND JUDICIAL SYSTEM - intermediate appellate courts - interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence - different interpretations alleged as to meaning of "significant probative value" - Velkoski v The Queen [2014] VSCA 121 held "significant probative value" requires a higher degree of similarities to that required by this Court - whether difference exists - whether difference needs to be addressed and reconciled - Evidence Act 1995 (NSW), ss 97, 98 - Evidence Act 2008 (Vic), ss 97, 98 EVIDENCE - admissibility - tendency and coincidence evidence - similar circumstances alleged in separate and independent complaints against applicant - whether evidence had "significant probative value" - whether trial judge failed to identify issues at trial to determine probative value - degree of specificity of conduct in determining probative value of tendency or coincidence evidence - relevance of similarities in determining probative value of tendency evidence - whether probative value of evidence outweighed any prejudicial effect - Evidence Act 1995 (NSW), ss 97, 98, 101(2) Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 5F Evidence Act 1995 (NSW), ss 97, 98, 101 Cases Cited: BP v R [2010] NSWCCA 303 CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26 DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 GBF v The Queen [2010] VSCA 135 Hoch v The Queen [1988] HCA 50; 165 CLR 292 House v The King [1936] HCA 40; 55 CLR 499 Ibrahim v Pham [2007] NSWCA 215 KRI v The Queen [2011] VSCA 127; 207 A Crim R 552 Lock (1997) A Crim R 356 O'Keefe v The Queen [2009] NSWCCA 121 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Lockyer (1996) 89 A Crim R 457 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 R v Zhang [2005] NSWCCA 437; 196 FLR 152; 227 ALR 311; 158 A Crim R 504 Sokolowskyj v R [2014] NSWCCA 55 Stubley v State of Western Australia [2011] HCA 7; 242 CLR 374 Velkoski v The Queen [2014] VSCA 121 Category: Principal judgment Parties: Dany Anis Saoud (Appellant) Regina (Respondent) Representation: Counsel: Mr M Thangaraj SC/Mr S Pararajasinghan (Appellant) Mr R Herps (Respondent) Solicitors: Simpson Freed Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2011/170763 Decision under appeal Jurisdiction: 9101 Date of Decision: 15 March 2013 Before: Lakatos SC DCJ File Number(s): 2011/170763 HEADNOTE [This headnote is not to be read as part of the judgment] Sections 97 and 98 of the Evidence Act 1995 (NSW) respectively provide that tendency and coincidence evidence is inadmissible unless it can be established as having significant probative value. Section 101 provides that the prosecution cannot use such evidence against a defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." The applicant was charged with seven counts of indecent assault and sexual assault on the basis of two separate complaints - one relating to conduct occurring on 8 August 2009, the other to conduct on 22 May 2011. The circumstances of each complaint were similar: former employees of the applicant, invited to his business premises after hours to help with work, where he persisted in sexual advances despite attempts to resist. The applicant denied the charges relating to the first complaint; he conceded the conduct constituting the indecent assaults with the second complainant, but said it was consensual. At trial, evidence of one complainant was held to have significant probative value with respect to charges concerning the other and was admitted as tendency and coincidence evidence. The issue for determination was whether the trial judge was correct in finding the evidence had "significant probative value" and whether the probative value of that evidence substantially outweighed its prejudicial effect. The Court (Basten JA, Fullerton and R A Hulme JJ) held, dismissing the appeal: 1. The evidence had significant probative value because it went to whether the applicant would have persisted in attempting sexual intercourse despite the absence of consent. This remained an issue even though the applicant accepted that the activities underlying the indecent assaults in the second complaint occurred: [26], [49]-[53] 2. The probative value of the evidence outweighed any prejudicial effect: it was confined to establishing the charges laid, did not involve deviant behaviour and there were no issues of collaboration or contamination of the complaints. There was nothing to suggest any prejudice that did arise could not be addressed by adequate directions: [54]-[59] Sokolowskyj v R [2014] NSWCCA 55 referred to. 3. Consideration of the Victorian Court of Appeal decision in Velkoski v The Queen [2014] VSCA 121 regarding admissibility of tendency evidence on the basis of similarities and its consistency with statements of this Court in R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v Ford [2009] NSWCCA 306; 201 A Crim R 451; R v PWD [2010] NSWCCA 209; 205 A Crim R 75; BP v R [2010] NSWCCA 303: [35]-[48]. Judgment 1BASTEN JA: The applicant seeks to challenge convictions with respect to a number of sexual offences against two young women. The issue is whether the trial judge was correct in allowing the evidence with respect to one complainant to be considered with respect to the charges concerning the other. Had that not been permitted, there would have been an application for separate trials with respect to each complainant which, it may be assumed, would likely have been granted. 2Where two women make similar allegations of sexual assault against a man in circumstances where there is no risk of collaboration between the complainants or contamination of the complaints, the instinctive response is to treat each as supportive of the other. Two independent allegations of non-consensual sexual activity are less likely to be mistaken or fabricated than each considered separately. However, for the purposes of a criminal trial such a response is inadequate. The law requires that each must have "significant probative value" with respect to the other and that that probative value must "substantially outweigh" any prejudicial effect: Evidence Act 1995 (NSW), ss 97, 98 and 101. 3In order to consider whether these tests are satisfied in a particular case it is necessary to have regard to the particular issues to be proved by the prosecution. The point may be illustrated by reference to Stubley v State of Western Australia [2011] HCA 7; 242 CLR 374, a case on which the applicant placed some weight. The accused was a psychiatrist charged with a number of offences of rape and indecent assault committed on two patients. The prosecution called evidence from three other patients with whom the accused had engaged in sexual activity. The accused did not deny the sexual activity with any of his patients: he denied that it was non-consensual. The High Court held that the evidence of the other three patients did not have significant probative value with respect to the issue in dispute, which was whether the activity with the complainants was consensual or non-consensual. 4Because the admissibility of the evidence was critical to the question whether there should be separate trials, it fell to be determined before the hearing before the jury commenced. As explained by Heydon J, in dissent in Stubley, there are procedural difficulties in identifying in advance of the hearing issues integral to the charge which the prosecution would not have to prove in the usual way. Nevertheless, it is necessary, so far as possible, to commence by identifying the relevant issues. That requires at least a brief outline of the circumstances giving rise to the charges and the procedural steps taken at the commencement of the hearing. 5One further preliminary matter should be noted, namely the nature of the appeal against conviction to this Court. There were (potentially) two competing approaches. The more generous approach (from the point of view of the applicant) would allow the Court to uphold the appeal, if satisfied that the decision of the trial judge was wrong. If that were the proper test, this Court would not have been constrained by the kind of limitations which can arise after trial, as no witnesses were called on the voir dire when the issue of admissibility was determined. On the alternative approach the Court can only intervene in the event that it is satisfied that there has been an error of law, or a misapplication of principle, such as would warrant intervention in a discretionary decision of a trial judge, in accordance with the principles explained in House v The King (1936) 55 CLR 499 at 504-505. On that basis, either some error of law must be demonstrated in the reasons of the trial judge or, in the absence of a specific error, it must be shown that the result, taking into account the material upon which the trial judge acted, was such that error could be inferred even if the precise error were undisclosed. 6Counsel for the applicant accepted, against interest, that the more restrictive approach applied and that it was necessary to demonstrate error in the sense established in House v The King: Tcpt, CCA 05/05/14, p 9(20). The correctness of that concession need not be doubted. Although the decision of the trial judge involved a binary choice (the evidence was either admissible or it was not) it was based upon an evaluative judgment and thus bore characteristics of a discretionary exercise of power. Further, the reasoning in DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 would appear to support that conclusion, although that case was concerned with an interlocutory appeal under s 5F of the Criminal Appeal Act 1912 (NSW). 7There was one other curiosity about the appeal. Although the issue of admissibility was dealt with on the basis of statements made by the complainants and medical practitioners who examined them, these documents were not before this Court. Rather, the Court was referred to their evidence before the jury. Background to charges 8The applicant operated an automotive repair business in Campbelltown. The first complainant, AC, worked for him in the business for a period of one month before he terminated her employment. They continued to have social contact, her sometime boyfriend being a friend of the applicant. On 8 August 2009, on her evidence, the applicant contacted her and asked her to come to his workplace to help him by returning a car to a customer. That, on her account, was a pretext to get her to come to his office after hours. According to her complaint, when she arrived at the office in the afternoon the applicant massaged her neck and shoulders whilst she sat in a chair in his office, then grabbed her breasts and digitally penetrated her vagina. After she left she drove to her current boyfriend's place and told him what had happened. He rang her mother and went with her to the police. She then went to Liverpool Hospital where she was examined by a doctor. Although she spoke to police about the assault, she advised them a few days later that she did not wish to proceed with the complaint. 9The second complainant, KS, worked for the applicant in November 2010. She worked for a week only, leaving because the applicant touched her unnecessarily in the course of her work. He remained in contact with her over the following months. On 22 May 2011 he sent her a text asking her to work for him the following day. She agreed. After work, the applicant offered her a massage and tried to kiss her on the mouth. When she stood up, he put his hands around her waist and rubbed his penis against her crotch. He then touched her breast on the outside of her clothes moving his hand around, and then removing her clothing, touched her breasts and tried to kiss her on the breast. 10KS alleged that the applicant then undid her jeans and pulled down his own pants. He had an erection. She had had minor cervical surgery and told him that she was not allowed to have intercourse for medical reasons. He then turned her around and placed one or two fingers, and then his penis, inside her anus. 11Counts 1 involved an indecent assault on AC (touching her breast) and count 2 sexual intercourse with AC without her consent. 12Counts 3, 4 and 5 involved indecent assaults on KS, being the touching of her breasts outside her clothes, rubbing his penis against her crotch and touching her breasts under her clothes. Counts 6 and 7 involved the digital and penile anal intercourse with KS. Procedural background 13Prior to conducting the voir dire, the applicant was arraigned on all seven counts and pleaded not guilty to each. The prosecutor then stated that notices with respect to tendency and coincidence evidence had been served on the defence. She provided written submissions in support of the cross-admissibility of the evidence specific to the charges with respect to each complainant. The material provided to the trial judge included statements by the complainants, a police fact sheet relating to the charging of the accused, statements by medical practitioners who had examined each complainant shortly after the alleged attacks and the notices themselves. 14Counsel for the accused indicated that he opposed the application to tender evidence on that basis, but did not seek to call any evidence on the application. There was a short adjournment while the trial judge read the material, followed by some brief supplementary submissions from the prosecutor. She tendered a copy of the record of interview conducted with the accused on 24 May 2011 and noted that in his brief remarks prior to the adjournment, counsel had indicated that "there may be an issue in the trial as to consent": Tcpt, 15/10/12, p 4(27). Referring to the limited material in the record of interview, she stated that she was proceeding "on the basis that the Crown would be seeking to prove the sexual acts themselves and that that would be the matter that was in issue at trial." The trial judge decided the issue of admissibility, as was to be expected, on the material then available to him: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at 317 (Simpson J). The issue was not revisited in the course of the trial; there was no challenge to the way the case was left with the jury. 15The judge's reasons for accepting the cross-admissibility of the evidence with respect to the two groups of offending gave careful consideration to the submissions of both parties. In particular, he identified the submissions for the accused (at p 2) as being that (a) "there is no relevant similarity"; (b) "that this is a device adopted by the Crown to strengthen the weak case relating AC by allowing much stronger evidence pertinent to the case of KS", and (c) that the accused "would suffer irreparable prejudice if that were allowed to occur." The judge also noted the suggestion that to allow the cross-admissibility of the evidence would "lower the bar in relation to tendency evidence". 16With respect to the prosecution case the judge noted the submission (p 4) that the identified similarities "appear to reveal a particular modus operandi of the accused" and involve aspects which are "substantially similar". (The matters relied on will be considered further at [49]ff below.) The judge then noted further submissions for the accused (at p 6) that (a) "the elements of similarity ... are commonplace in all or many sexual offences"; (b) there was a significant "time delay" between the offences, and (c) there were significant differences in the relationships between each complainant and the accused, as well as the matters noted above. He discussed the evidence of Facebook entries and SMS messages between the accused and KS, but concluded that "that material does not support any substantial difference in qualities of the relationship between KS and the accused on the one hand and between AC and the accused on the other": p 9. 17In this Court the applicant contended that the issues at trial had been significantly narrowed as a result of a statement by counsel for the accused in the course of the voir dire, at Tcpt, 15/10/12, pp 4(45)-5(5). The statement was confusing in part and rhetorical in part. However the effect of it appears to have been adequately summarised by the trial judge in his interlocutory judgment of 16 October 2012, p 2-3 in the following terms: "I note that counsel in his submissions on the voir dire has indicated that his present instructions are that the accused denies any sexual activity took place except for the activity in counts 3 to 5 involving KS. In relation to those counts, as I understand it, the accused's case will be that they happened and were consensual." 18Having addressed this matter and the submissions noted above, the trial judge then posed and answered the first of the questions at p 11: "The question then to be determined about this evidence is as follows: is the evidence sought to be led that is pertinent both to s 97 and 98, relevant in the sense of s 55? Could it directly or indirectly affect the determination of a particular issue in the case? ... I consider that the evidence is clearly relevant and probative in relation to the questions of whether the acts, the subject of the alleged offences, occurred and also whether any or all of them were consensual." 19The judge then went on to consider whether the test of "significant probative value" was satisfied: he concluded that it was. He found that it disclosed "a pattern of behaviour which is more than mere commonplace behaviour"; he dismissed the suggestion that the lapse of time affected that conclusion. 20This approach demonstrated that, although he had earlier noted apparent concessions by counsel for the accused, he did not treat those concessions as limiting the issues required to be established by the prosecution. Identifying the issues 21It is not in doubt that probative value "must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact": Lock (1997) 91 A Crim R 356 at 361 (Hunt CJ at CL). In written submissions before this Court, the applicant was vaguely critical of the trial judge for not identifying those matters which were in issue at the trial: pars 46 and 47. This resulted in the following submission at par 51: "In the trial of KS, for at least counts 3-5, the live issue was consent. To that end, the evidence of AC did not have the capacity to bear rationally on whether KS consented to any sexual activity. Further, AC's evidence could not relevantly bear on the question of whether, in circumstances where KS did not consent to the sexual activity, the appellant was aware of KS' non-consent. Put another way, AC's evidence was incapable of rationally affecting a consideration of the appellant's state of mind at the time of the allegations against KS." 22So far as it goes, this submission should be accepted. However, it left a number of charges and indeed a number of issues within charges, unresolved. Broadly speaking, the elements of the sexual offences can be placed in three categories, namely: (a) the conduct of the accused; (b) whether or not the complainant consented, and (c) whether the accused knew that the complainant was not consenting. These, of course, are not discrete categories: the conduct of the accused (such as the use of force) may indicate both lack of consent and knowledge of lack of consent. However, for present purposes, it would be unusual for there to be relevant tendency or coincidence evidence with respect to the complainant's state of mind where the evidence of earlier events involved a different complainant. It is also unlikely that an earlier event involving a different complainant would provide probative evidence as to whether the accused knew that the complainant the subject of the charge was not consenting. That is put more tentatively than the former statement, because earlier events may demonstrate that the accused was indifferent as to whether the other person was consenting or that he would have known from earlier experience what constituted non-consent. 23The only issue which appeared to be conceded by the accused was the conduct alleged to constitute indecent assault against KS. Further, the statements of counsel, in the terms they were expressed, did not provide any basis for the judge (or the prosecutor) to conclude that those elements would not need to be proved beyond reasonable doubt. 24The oral submissions in this Court focused squarely on the proposition that, assuming that there were sufficient similarities to demonstrate tendency or rebut coincidence, the complaints of AC could only be relevant to whether the activities involved in counts 6 and 7 occurred, the activities found in counts 3-5 being conceded. The applicant was content to base his argument on that submission because, assuming AC's complaint would not be admissible with respect to the allegations made by KS, it would not have been plausible that the evidence would have been allowed to go to the jury. To allow that would have required the jury to have regard to KS' evidence in considering the charges relating to AC, but to disregard AC's evidence in considering the charges relating to KS. It should be accepted that a joint trial would not have proceeded on that basis. 25Further, by focusing on counts 6 and 7, involving digital and penile anal intercourse, the applicant was able to emphasise the disparities between those counts and the count of digital vaginal intercourse with respect to AC. Thus, the applicant was also able to contend that the evidence with respect to AC could not properly have been admitted if it were necessary to confine its relevance to counts 6 and 7 and distinguish those counts from counts 3-5. 26The logic of these submissions may be accepted, but they fail at the starting point: the informal indication that the conduct of the applicant in relation to counts 3-5 was conceded was not sufficient to withdraw the issue from the jury as a matter no longer needing to be proved by the prosecution. There was no relevant error on the part of the trial judge in proceeding on the basis that all issues remained to be proved. Significant probative value 27The "tendency rule" set out in s 97 of the Evidence Act commences with the proposition that 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 ... to act in a particular way, or to have a particular state of mind": s 97(1). The exception to the rule permits such evidence if the court thinks that it will "either by itself or having regard to other evidence adduced or to be adduced ... have significant probative value": s 97(1)(b). 28Tendency evidence can take various forms; it is not necessarily based on the conduct of the accused on separate occasions. On the other hand, when it is there will be an inherent element of similar behaviour in order to demonstrate a tendency, absent which the section is not engaged. 29The prosecution also relied on the evidence as admissible under the "coincidence rule" set out in s 98 of the Evidence Act. That section is in somewhat different language to s 97, and it is convenient to set out the relevant parts verbatim. 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. 30The qualifying basis of admissibility in paragraph (b) is identical to s 97(1)(b). The differences in the structure of the opening words of each subsection are, however, significant. Section 97(1), at least in part, provides a basic rule that evidence of a tendency that a person has is not admissible to prove that a person has a tendency to act in a particular way or to have a particular state of mind. In short, "tendency" is seen as a risky form of circumstantial evidence capable of causing prejudice. Section 98 has a different structure, although its language is more obscure. It will often be the case that one must prove a sequence of events to prove that the accused did a particular act or had a particular state of mind: however, the focus on "any similarities in the events or the circumstances in which they occurred" and the reference to the improbability that the events "occurred coincidentally" focuses on separate occasions. Thus, the practical application is concerned with proof that the accused was implicated in event A and, event B having occurred, the inference that the accused was implicated in it too. To allow "implausibility reasoning" it is necessary to have regard to the similarities between the two events and, by way of contrast, any differences. 31In placing reliance on earlier authorities, it should be noted that the language of s 98 was significantly changed by the Evidence Amendment Act 2007 (NSW), which commenced on 1 January 2009. Before that amendment, subs (1) referred to "two or more related events", while subs (2) stated that events were taken to be related if and only if "they are substantially and relevantly similar" and the circumstances in which they occurred are "substantially similar." The language of substantial similarity has been abandoned. Accordingly, care must be taken in referring to decisions concerned with the earlier language. Nevertheless, the explanation of the principles implicit within s 98 in R v Zhang [2005] NSWCCA 437; 196 FLR 152; 227 ALR 311; 158 A Crim R 504 at [33]-[36] remain applicable. 32Before considering the test of "significant probative value" it is convenient to note that the admissibility of both tendency and coincidence evidence depends upon a finding that "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant": s 101(2). Relevant caselaw 33The concept of "significant probative value" has been the subject of consideration in a number of cases, starting in this Court with R v Lockyer (1996) 89 A Crim R 457 at 459 (Hunt CJ at CL). It is sufficient for present purposes to note the statutory language. Further, as explained by Campbell JA (Howie and Rothman JJ agreeing) in R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [52], a decision "that evidence has 'significant probative value' is, like the decision about whether the evidence has 'probative value' at all, a decision about the reasoning processes that are open to a jury." 34The applicant relied upon a number of authorities to support his challenge to the finding of the trial judge. In written submissions, apart from reliance on the reasoning of the High Court in Stubley, a number of authorities were cited for the proposition that in assessing "significant probative value", the degree of specificity of the conduct alleged to evince a tendency or coincidence is important: Ibrahim v Pham [2007] NSWCA 215 at [264]-[266]; O'Keefe v The Queen [2009] NSWCCA 121 at [65]-[68]; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; 24 VR 486 at [40]; GBF v The Queen [2010] VSCA 135 at [31] and Fletcher at [57]-[58]. In oral argument, counsel also referred to the recent decision of the Court in Sokolowskyj v R [2014] NSWCCA 55. Neither party submitted that there was any significant variation between the case law in Victoria and in this State, nor that there had been any particular change in the approach to tendency and coincidence evidence over the period covered by the cases relied upon. 35Both of these last propositions have been called in question by a recent and comprehensive analysis by the Victorian Court of Appeal in Velkoski v The Queen [2014] VSCA 121 (Redlich, Weinberg and Coghlan JJA). The Court stated that "[c]urrently there are undoubted differences between the decisions of this Court and the New South Wales Court of Criminal Appeal as to whether similarity of features need be present in order for evidence to be admissible as tendency evidence": at [34]; see also at [82] and [163]. The apparent point of departure is "as to the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning": at [163]. A line of authority in New South Wales was said to have "emphasised that tendency reasoning is not 'based upon similarities', and evidence of such a character need not be present", referring to R v PWD [2010] NSWCCA 209; 205 A Crim R 75; BP v R [2010] NSWCCA 303 and, by way of contrast, a Victorian case, KRI v The Queen [2011] VSCA 127; 207 A Crim R 552. 36A statement of another intermediate court of appeal in such uncompromising terms in relation to uniform legislation operating in both jurisdictions raises an issue of some sensitivity for this Court. There are difficulties in responding to what is undoubtedly a thorough and troubling analysis. However, it is not entirely clear from the judgment in Velkoski how the issue of comparative jurisprudence arose, or what submissions were put to the Victorian court. Further, to be sure that a real difference of approach has been identified, rather than a difference in semantics, it will be necessary to decide whether comparable cases would be decided differently in each State. That was not an exercise expressly undertaken in Velkoski. Finally, to undertake that exercise would have required recognition of the debate in this Court as to the nature of the Court's jurisdiction on an interlocutory appeal. It might also have required consideration of whether the change in statutory language in 2009 in this State's Evidence Act affected the approaches adopted before and after that time. 37It is neither productive nor appropriate (there being no hint of disagreement in the submissions before the Court) to consider whether in this respect the opinions expressed in Velkoski are correct. However, it may be noted that each Court has cited judgments of the other over a number of years without major points of departure being noted. More significantly, it is possible to derive a number of basic propositions which are not in doubt and are sufficient to resolve the issues in this case. 38First, the provisions of the Evidence Act have effected change to common law principles, which are no longer to be applied. It follows that, whilst there may be assistance to be derived from the common law cases with respect to the underlying principles which inform the exclusion of tendency and coincidence evidence, those cases provide limited guidance as to the circumstances in which such evidence may now be admitted. 39Secondly, although there is no necessary harm in using concepts which became familiar in the common law cases, such as the fact that evidence reveals "unusual features", "underlying unity", "system" or "pattern", which are essentially neutral as to the level at which such features are demonstrated, the language of "striking similarities" suggesting a particular strength of probability reasoning is no longer apt, because it is inconsistent with the test of "significant probative value": Simpson J in Fletcher at [60], commenting on a passage from Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294-295. 40Thirdly, reliance on such language may distract (by creating a mindset derived from common law experience) and may provide little guidance in applying the current statutory test. As stated by Campbell JA in R v Ford at [125]: "The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged." 41Earlier, at [41], Campbell JA had stated: "The case law contains examples of the way in which a tendency to engage in a particular type of behaviour can be relevant to whether an accused has committed a particular crime charged, even though that tendency does not in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li [2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]: 'Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was not necessary for this purpose to show that he had detained her on any other occasion.'" 42Fourthly, attention to the language of s 97 (and s 98) has the practical advantage of focusing attention on the precise logical connection between the evidence proffered and the elements of the offence charged. Thus, rather than asking whether there is "underlying unity" or "a modus operandi" or a "pattern of conduct" the judge can focus on the particular connection between the evidence and one or more elements of the offence charged. 43Fifthly, there is an awkwardness in the separation of "tendency" evidence and "coincidence", at least in some circumstances. Thus, in a case such as the present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused's conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another. 44Sixthly, "tendency" evidence will usually depend upon establishing similarities in a course of conduct, even though the section does not refer (by contrast with s 98) to elements of similarity. That inference is inevitable, because that which is excluded is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Evidence of conduct having that effect will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case. 45In R v PWD, Beazley JA stated at [79]: "The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities. Section 98 provides in terms that two or more events occurring is not admissible to prove that a person did a particular act, 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, the evidence has significant probative value." (Emphasis in original.) 46That statement accurately reflected both the authorities which had been outlined at [57]-[70] and the language of ss 97 and 98. That passage (when read in context) does not "remove any requirement of similarity or commonality of features", as suggested in Velkoski at [164]. 47In Velkoski, reliance was placed on BP v R (as well as R v PWD) as support for the proposition that this Court did not require any degree of similarity or commonality of features. In BP, Hodgson JA succinctly stated principles relevant to the application of s 97 at [106]-[111]. His approach is adequately revealed by the following passages: "[108] It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value. ... [112] In my opinion, subject to the question of concoction, to which I will return, features of the appellant's conduct described by each complainant were sufficiently similar and sufficiently unusual for the evidence of each of them to have significant probative value in showing the specified tendencies; and the existence of those tendencies would have significant probative value in supporting other evidence that the appellant committed the offences charged. In my opinion, it is unusual for a parent or grandparent to do acts of the kind described by each witness, and the acts described by each, if accepted, would in my opinion to a very significant extent rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest in assaulting them; and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged." 48It is not necessary to multiply examples: where relevant and appropriate, a proper consideration of similarities will constitute an essential part of the application of s 97, as this Court has accepted on numerous occasions. Application of principles 49At the most basic level, the evidence of the two complainants suggested that the applicant was a man who was willing to extract sexual gratification from young women, indifferent to their willingness to participate (or otherwise). Expressed at that level of generality and noting that the incidents were some 18 months apart, the conduct alleged in one case would have only limited probative value with respect to the conduct in the other. While lack of consent and lack of interest in consent are common to the various complaints, the mere fact of two sexual advances to different women over an 18 month period would demonstrate nothing of significance. However, to the extent that such evidence was material, the fact that the jury might accept that the indecent assaults on KS occurred, but involved consensual activity, would not necessarily deprive the evidence of AC of such probative value as it otherwise had with respect to the complaints of intercourse. 50The prosecution case went further than the bland statement set out above: reliance was placed upon what appeared to constitute a particular mode of operation involving the following elements, namely: (a) both complainants were former female employees; (b) both were aged in their early 20s; (c) each was invited to the business premises by the applicant; (d) the offences occurred on the business premises but outside business hours when no other persons were present; and (e) during their brief periods of employment, each had been subjected to unwanted and inappropriate touching by the applicant, indicating, by inference, a sexual interest. 51A third set of factors sought to be relied on involved the nature of the assaults. To an extent these were repetitive of the elements of the modus operandi, namely that they occurred in the office area of the business premises. Otherwise, the elements were largely unremarkable: there is a limited range of sexual activity likely to occur on a casual encounter of the kinds in question. More significantly, each involved elements of physical force at least consistent with lack of consent and indifference to whether the woman was consenting or not. This fact combined with the next matter demonstrated a degree of probative value above mere relevance. 52The critical element of each complainant's evidence was that she was lured to a place where the applicant would be alone, by what appeared to be a plausible pretext. Whilst the office at his business may not appear to be an obvious location for consensual sexual activity, that fact in isolation would not be a powerful factor. However, when combined with the first factor (the luring on a pretext) and with a third factor, namely the willingness to proceed with serious sexual activity in the face of rejection, the combined effect allowed the trial judge to find significant probative value. 53Given that the issue on appeal is to be determined by reference to the constrained standard identified above, the Court should not be satisfied that error has been established. The evidence of each complainant taken in isolation could have satisfied a jury beyond reasonable doubt of the elements of the various offences against that complainant. On the other hand, it would have been open to the jury to entertain a reasonable doubt as to whether the conduct with respect to each of the offences occurred. With respect to KS in particular, being the focus of the applicant's principal arguments, the evidence of AC would have provided significant support for the allegation that, despite rejection, he proceeded to attempt sexual intercourse; it would also have provided support for the occurrence of the indecent assaults on KS in the face of her resistance. That element would have been significant, even if the applicant accepted that the activities underlying the indecent assaults occurred, but submitted that they were with consent. Possible prejudicial effect 54Having concluded that the evidence in dispute satisfied the test of "significant probative value" the trial judge dealt with the requirement of s 101 that the probative value substantially outweigh the prejudicial effect: at pp 11-13. In that passage, the trial judge considered and assessed the weight of the evidence and its weaknesses. He reached the conclusion that "with the proper directions, any unfair prejudice on the accused is removed and the probative value of the evidence does substantially outweigh any prejudicial [effect]." 55The written submissions for the applicant touched upon this finding but briefly in the last paragraph of the document: written submissions, par 63. It was not identified as an issue in the opening paragraphs. The full extent of the submission was as follows: "If the Court is of the view that any residual 'significant probative value' meets the first hurdle then it is submitted that it is outweighed by the danger of the unfair prejudice as mandated in section 101 of the Act. In a case such as the present, the unfair prejudice is obvious and manifests in a jury over estimating the probative worth of the evidence and the very real risk that a jury would [find] guilty verdicts merely on the basis that two complainant's [sic] have made a complaint [sic] against the same person for sexual assault, as distinct from the nature and quality of the evidence at trial." 56This passage did not seek to identify error on the part of the trial judge, but merely invited this Court, in effect, to re-exercise the evaluative judgment. That approach was erroneous. The passage was posited upon there being only "residual" significant probative value. The statement of the risk of prejudice was in general terms: there was no reference to the way in which it was put to the trial judge, nor was there complaint that such prejudice could not adequately be dealt with by appropriate directions. 57In the judge's reasons, some attention was paid to whether the allegations with respect to AC constituted a "weak case" which was sought to be bolstered by a hearing concurrently with the allegations with respect to KS. That was because trial counsel had put the question of prejudice squarely on that basis: Tcpt, 15/10/12, p 19(20). Otherwise, the submissions had a high level of rhetoric, although it did appear that the trial judge identified the substance of the complaint. Thus, although the submissions continued over some pages, they were largely an extrapolation of the proposition that "the prejudice is phenomenal and that's why as I understand it is a ... rule of practice that you would never run two unrelated sexual matters together because - in the jury's terms the lightning striking twice principle which is, you know, foreign to all jurors and that's really what it's about": at p 19(35)-(40). 58In oral argument in this Court senior counsel noted and adopted the analysis of "prejudicial effect" in the judgment of Hoeben CJ at CL in Sokolowskyj, at [46]-[50]. Counsel noted that "it would have been artificial to limit the directions in one way or another", but made no challenge to the directions actually given: Tcpt, 05/05/14, p 8(6)-(25). Again, there was no attempt to identify error in the approach adopted by the trial judge. 59There was, perhaps, not much more that could be said about prejudicial effect. This was not a case in which the allegations involved a form of deviant behaviour inherently likely to raise prejudice; it was not a case in which there were uncharged acts and a risk that the jury would not assess those acts thoroughly according to the criminal standard before taking the allegations into account; it was not a case where there was a plethora of acts, which might give rise to confusion or distraction from the primary issues. Finally, it was not a case in which there was any issue of collaboration or contamination of the complaints, which would need to be assessed by the jury before determining what weight they might give to the evidence. In these circumstances, the challenge (so far as it was made) to the judge's application of s 101 must be rejected. Conclusions 60For the reasons identified above, this Court was required to assess the decision (and reasons) of the trial judge against the standard applicable to discretionary judgments, set out in House v The King. No particular passage in the reasons was relied on to demonstrate error, either a misunderstanding of fact or of legal principle. Further, the primary challenge was limited to the finding that the evidence of each complainant satisfied the test of "significant probative value" with respect to the charges involving the other complainant. There was no question raised as to the adequacy of any directions given to the jury. There was a somewhat cursory challenge to the judge's acceptance that, the evidence being of significant probative value, that value substantially outweighed any prejudicial effect, for the purposes of s 101(2). 61Because the issues thus identified did not involve a question of law alone, leave to appeal against conviction was required: Criminal Appeal Act, s 5(1)(b). The matters raised with respect to the primary challenge were by no means clear cut and warranted a grant of leave to appeal. 62The applicant did not demonstrate any error of principle in the reasoning of the trial judge. Nor did the result, assessed by reference to the material before the trial judge, demonstrate any undisclosed error of principle. The appeal should be dismissed. 63FULLERTON J: I agree with Basten JA. 64R A HULME J: I agree with Basten JA. ********** Amendments 25 July 2014 - Replacing Campbell J with Fullerton J in headnote Amended paragraphs: Headnote 14 May 2015 - [5] Amending citation. [27] Amending "of the person" to "of a person". [47] Deleting "events" and inserting "incidents" in [108] quote. [57] Correcting spelling of "lightning". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2015