Coincidence evidence is a category of evidence which aims to establish that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities between two or more events and/or the circumstances in which they happened, it is improbable that the events happened coincidentally. In NSW, the ‘coincidence rule’ is governed by section 98 of the Evidence Act 1995 (NSW) and is very similar in application to the related category of ‘tendency’ evidence.
Admissibility
Generally, coincidence evidence is inadmissible – meaning that it is ordinarily not accepted as evidence in court. That is, notwithstanding the party hoping to adduce the evidence satisfying two criteria:
- The party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
- The court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Typically, applications to adduce coincidence evidence are heard months before a trial is listed to commence. Accordingly, the courts have steadfastly found that a notice of intention to adduce coincidence evidence that is served at least several months before the commencement of a trial would be sufficient to constitute “reasonable notice”.
Coincidence evidence may be relied upon through a process of inferential reasoning to establish the existence of a relevant fact in issue. To this extent, the jury or judge may infer from evidence available to them that it is improbable that two or more events occurred coincidentally. It can therefore be inferred from the improbability of such a coincidence the existence of a relevant fact or circumstance (R v DCC (2004) 11 VR 129).
For example, coincidence evidence may be used to establish the identity of an offender where there is a concrete and ascertainable modus operandi used which makes it likely that the same individual is responsible for two or more particular offences Pfennig v R (1995) 182 CLR 461). In these circumstances, the prosecution will submit that the offending in the two separate circumstances is so similar so as to make it improbable that the offences were not committed by the same individual. Nevertheless, the evidence relied upon must be sufficient to demonstrate more than the “stock in trade” of that type of offending Sutton v R (1984) 152 CLR 528).
Characterisation
Put simply, coincidence evidence relies on the improbability of events occurring other than in the way suggested to infer the fact in issue (R v Nassif [2004] NSWCCA 433). Importantly, coincidence evidence through its characterisation needs to be distinguished from similar types of evidence – such as ‘relationship’ or ‘context’ evidence. Relationship evidence is circumstantial evidence derived from the nature of the relevant relationship between the complainant and the defendant (Gipp v R (1998) 194 CLR 106).
Alternatively, context evidence refers to the proper contextualisation of the offending circumstances through evidence of other surrounding or associated acts that are not charged in the indictment. The purpose of such evidence is to place the specific allegation or allegations that are on the indictment in the context of the overall allegations in order to help the jury assess and evaluate the other evidence in the case in a true and realistic context (R v AH (1997) 42 NSWLR 702).
In order to effectively delineate between the specific types of evidence being relied upon, it is suggested that judges expressly ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (HML & Ors v R (2008) 235 CLR 334). The prosecution should, in response, clearly articulate how it says the jury should use the relevant evidence. If that use would involve the jury engaging in coincidence reasoning, then the evidence must be treated as coincidence evidence (Qualtieri v R [2006] NSWCCA 95; R v Cakovski (2004) 149 A Crim R 21).
Probative Value
Pursuant to section 101 of the Evidence Act, where the prosecution seeks to adduce coincidence evidence about the accused, the evidence will only be admissible if its probative value “substantially outweighs” any prejudicial effect that it may have on the accused.
As a general rule, it is accepted that the more likely that there is a relationship between the prior circumstances/conduct and those in the present circumstances, the more likely that the coincidence evidence will have probative value. They do not need to be uniform and an exact parallel of circumstances or “striking similarity” for the relevant test to be satisfied and before coincidence reasoning can be applied.
Rather, admissibility is contingent upon the facts in issue, the nature and circumstances of the other acts, the degree of similarity between the events, the relationship between any relevant parties and all the circumstances of the case (PG v R [2010] VSCA 289; R v Ellis (2003) 58 NSWLR 700). In determining the probative value of the evidence, the Court cannot have regard to whether the evidence may be the result of collusion, concoction or contamination. Instead, it is a matter for the jury to accept or reject the credibility of coincidence evidence after hearing the evidence if it is admitted.
Once the evidence is deemed to have significant probative value, the Court must consider whether adducing the evidence poses a danger of unfair prejudice towards the defendant and where such prejudice may arise, whether it is outweighed by the probative value of the evidence. Danger of unfair prejudice ordinarily arises where the evidence could lead a jury to adopt an illegitimate form of reasoning or where the jury may give the evidence undue weight – notwithstanding the imposition of clear appropriate directions from the judge to the jury to ensure that the evidence is used for its intended purposes only (The Queen v Falzon (2018) 92 ALJR 701 at [42], [45]; R v Yates [2002] NSWCCA 520 at [252]).
Anti-Coincidence Directions
The requirement for a direction about coincidence evidence is dependant upon whether a direction is sought or in the absence of any such request, there are substantial compelling reasons for giving the direction. Where coincidence evidence is adduced by the prosecution and a direction is necessary, the trial judge must:
- Identify how the evidence is relevant to the existence of a fact in issue; and
- Direct the jury not to use the evidence for any other purpose; and
- Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
- If the evidence only forms part of the case against the accused, inform the jury of this fact
In doing so, the judge is required to explain the concept of ‘coincidence reasoning’ to the jury. The most commonly cited examples of this being done can be found in R v Straffen [1952] 2 QB 911 and Pfennig v R (1995) 182 CLR 461. As part of this direction, the judge must identify the basis relied upon to support coincidence reasoning – i.e. the individual circumstances purported to give rise to a coincidence (Feng v The King [2023] VSCA 196).
Any such direction must adhere to any impediments to the admissibility and use of the evidence, directing the jury to not use the evidence for identified impermissible purposes. To this effect, judges are encouraged to have the prosecutor describe each step along the path (or paths) of reasoning which the jury may follow to infer the accused’s guilt from the evidence (HML & Ors v R (2008) 235 CLR 334).
Where coincidence evidence is deemed inadmissible, the judge may be required to give an anti-coincidence reasoning direction. In such circumstances – where evidence is not admissible as coincidence evidence, but there is a risk that the jury will use the evidence to engage in coincidence reasoning – the judge is required to explicitly warn the jury not to do so (R v OGD (No 2) (2000) 50 NSWLR 433; Gipp v R (1998) 194 CLR 106).
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
Sam Hines
Hugo Law Group
Sydney
