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4.19 - Coincidence Evidence

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Overview

  1. Part 4, Division 2 of the Jury Directions Act 2015 regulates jury directions on ‘other misconduct evidence’. This is defined as:
    1. Coincidence evidence, as defined in the Evidence Act 2008;
    2. Tendency evidence, as defined in the Evidence Act 2008;
    3. Evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
    4. Evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (Jury Directions Act 2015 s26).
  2. This topic examines coincidence evidence as a form of ‘other misconduct evidence’.

    What is "Coincidence Evidence"?

  3. "Coincidence evidence" is evidence which uses the improbability of two or more events occurring coincidentally to prove that:
  4. The use of "coincidence evidence" relies on a process of inferential reasoning, in which the jury:
  5. One of the events relied upon may be an event the occurrence of which is a fact in issue in the proceeding (Evidence Act 2008 s98).

    How do "coincidence evidence" and "tendency evidence" differ?

  6. Care must be taken to distinguish "coincidence evidence" from "tendency evidence" (R v Nassif [2004] NSWCCA 433; Gardiner v R [2006] NSWCCA 190; KJR v R [2007] NSWCCA 165).
  7. "Tendency evidence" is evidence of a tendency that a person has or had, which the jury can use to infer a fact in issue (Evidence Act 2008 s97).
  8. While the evidence that constitutes "tendency evidence" and "coincidence evidence" may seem similar, the type of inferential reasoning used by the jury differs for each type of evidence:
  9. Judges must therefore separately determine whether to admit evidence as coincidence evidence and whether to admit evidence as tendency evidence. In doing so, they must consider how the parties seek to use the evidence, as that will determine which admissibility test applies and what directions the jury must be given (R v Nassif [2004] NSWCCA 433; Gardiner v R [2006] NSWCCA 190; KJR v R [2007] NSWCCA 165).
  10. See Tendency Evidence for further information concerning tendency evidence.

    How do "coincidence", "relationship" and "context" evidence differ?

  11. "Coincidence evidence" must also be distinguished from:
  12. See Other Forms of Other Misconduct Evidence for further information concerning relationship and context evidence.

    Determining whether evidence is "coincidence evidence"

  13. It is important for judges to determine whether evidence is sought to be admitted and used as coincidence evidence, tendency evidence, relationship evidence and/or context evidence. That determination will affect the admissibility test to apply and the directions to be given.
  14. As this can be a difficult task, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see HML & Ors v R (2008) 235 CLR 334 per Hayne J).
  15. The prosecution should clearly articulate how it says the jury should use the relevant evidence. This will involve identifying the fact in issue and how the evidence is relevant to that fact in issue. If that use would involve coincidence reasoning (see above), then the evidence must be treated as coincidence evidence (see, e.g., Qualtieri v R [2006] NSWCCA 95; R v Li [2003] NSWCCA 407; R v AH (1997) 42 NSWLR 702; R v Ngatikaura [2006] NSWCCA 161; R v Cakovski (2004) 149 A Crim R 21; Jacobs v R [2017] VSCA 309 at [15]).

    Admissibility of Evidence of Similar Events

  16. Evidence that two or more similar events occurred may be admitted:

    Admitting evidence to prove the improbability of coincidence

  17. The "coincidence rule" states that evidence is generally [3] not admissible as coincidence evidence (i.e., for the purposes of proving a fact in issue due to the improbability of events occurring coincidentally) unless:
  18. Where it is the prosecution who seeks to lead 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 (Evidence Act 2008 s101).
  19. There does not need to be an exact parallel of circumstances (a "striking similarity") before two or more events may be admitted as coincidence evidence. Instead, the admissibility of coincidence evidence depends on 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; CW v R [2010] VSCA 288. See also S v R [2008] NSWCCA 330; AE v R [2008] NSWCCA 52; R v Ellis (2003) 58 NSWLR 700).
  20. The provisions concerning the admissibility of coincidence evidence replace the common law rules regarding similar fact evidence (R v Ellis (2003) 58 NSWLR 700; CW v R [2010] VSCA 288).
  21. Care should be taken when examining older cases on the scope of the coincidence rule. Before 2007, the coincidence rule in Uniform Evidence jurisdictions only applied to "related events", which were defined as events that were substantially and relevantly similar and where the circumstances were substantially similar. The new coincidence rule has broader application.[4]

    Admitting evidence for another purpose

  22. The "coincidence rule" only governs the admission of evidence that is sought to be adduced as coincidence evidence. It does not prevent evidence of similar events being admitted for another purpose (e.g., to provide context for the offence) (see, e.g., R v Quach [2002] NSWCCA 519; Conway v R (2000) 98 FCR 204; FDP v R (2008) 74 NSWLR 645; R v Cornwell (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356).
  23. Such evidence does not need to comply with the coincidence rule in order to be admitted. Instead, its admissibility is governed by the general test of relevance in Part 3.1 of the Evidence Act 2008,and the discretions contained in Part 3.11 of that Act (R v Quach [2002] NSWCCA 519; Conway v R (2000) 98 FCR 204; FDP v R (2008) 74 NSWLR 645; R v Cornwell (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356).
  24. While evidence of prior similar events may be admitted for a non-coincidence purpose, if that evidence is not admissible under the coincidence rule, it cannot be used to prove a fact in issue due to the improbability that the events occurred coincidentally (Evidence Act 2008 s95).
  25. This means that where evidence is admitted for another purpose, the jury may only use it as coincidence evidence if it also satisfies the requirements of ss98-101 (Evidence Act 2008 s95; R v OGD (No 2) (2000) 50 NSWLR 433; KJR v R [2007] NSWCCA 165).
  26. This issue can be important in trials involving multiple charges. In such trials, questions may arise as to whether evidence admitted to prove one charge can be used as coincidence evidence to prove a matter relevant to one of the other charges. In answering this question, the court must determine whether that evidence would be admissible under the coincidence rule if the charges were heard separately (R v Nassif [2004] NSWCCA 433; R v Ellis [2004] HCA Trans 488).

    Uses of Coincidence Evidence

  27. Where evidence is admissible under the coincidence rule, that evidence can be used to prove a number of matters, including:

    Coincidence Reasoning and Identity

  28. Coincidence evidence may be used to establish the identity of the offender where the modus operandi used makes it likely that the same person is responsible for two or more particular offences (Pfennig v R (1995) 182 CLR 461; R v Straffen [1952] 2 QB 911; Thompson and Wran v R (1968) 117 CLR 313; R v Dupas (No 2) (2005) 12 VR 601).
  29. In such cases, the evidence can only be used if the jury is satisfied that both offences were committed by the same person and that the accused committed one of the offences (Pfennig v R (1995) 182 CLR 461; Sutton v R (1984) 152 CLR 528).
  30. For evidence of modus operandi to be admitted to establish the identity of the offender (due to a connection between the modus operandi used on other occasions and the modus operandi of the charged offence), that evidence must demonstrate more than the "stock in trade" of that type of offending (Sutton v R (1984) 152 CLR 528; R v Clune [1995] 1 VR 489; CW v R [2010] VSCA 288. See also R v Rajakaruna (2004) 8 VR 340; Thompson and Wran v R (1968) 117 CLR 313; CGL v DPP (2010) 24 VR 486; PNJ v DPP (2010) 27 VR 146).

    Coincidence Reasoning and Credit

  31. Coincidence evidence may be used to support the credibility of witnesses (see, e.g., R v Buckley (2004) 10 VR 215; R v DCC (2004) 11 VR 129; R v Papamitrou (2004) 7 VR 375; R v Rajakaruna (2004) 8 VR 340; R v Glennon (No 2) (2001) 7 VR 631).
  32. This use of coincidence evidence relies on the improbability of independent witnesses making similar allegations against the accused. The jury may reason that the similarities are more than can be explained by coincidence, and so their evidence is mutually supporting (R v Buckley (2004) 10 VR 215; R v DCC (2004) 11 VR 129; R v Papamitrou (2004) 7 VR 375; R v Rajakaruna (2004) 8 VR 340; R v Glennon (No 2) (2001) 7 VR 631).
  33. In determining whether coincidence evidence has significant probative value, the possibility of collusion, collaboration or innocent infection is not relevant, unless those possibilities rise to a level where it would not be open to the jury rationally to accept the evidence (R v Bauer [2018] HCA 40 at [69]). Previous decisions holding that the possibility of collusion destroys the probative value of coincidence evidence have been overruled (compare Velkoski v R [2014] VSCA 121; Murdoch v R (2013) 40 VR 451; PNJ v R (2010) 27 VR 146; BSJ v R (2012) 35 VR 475).
  34. If judges decide to admit coincidence evidence in circumstances where there is a risk of collusion, collaboration or innocent infection, the judge must warn that jury that it must find that the evidence from each witness was not affected by other witnesses before acting on the coincidence evidence (Murdoch v R (2013) 40 VR 451 at [134]; PNJ v R (2010) 27 VR 146; BSJ v R (2012) 35 VR 475).
  35. Whether coincidence evidence can be used to support credit will depend in part on what facts are in issue in the trial. Where the fact in issue is the state of mind of an alleged victim or third party (such as whether a complainant consented to sexual penetration), it is not permissible to use the evidence of other complainants to draw an inference about a particular complainant’s state of mind (see Jacobs v R [2017] VSCA 309; Phillips v R (2006) 225 CLR 303).

    Directions About Coincidence Evidence and Reasoning

  36. The need for a direction about coincidence evidence and reasoning will depend on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss12, 14, 15, 16, 17). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  37. Coincidence evidence is a form of ‘other misconduct evidence’. The content of the direction is specified in Jury Directions Act 2015 Part 4, Division 2.

    Directions where coincidence evidence adduced by prosecution

  38. Where coincidence evidence is adduced by the prosecution and a direction is necessary, the trial judge must:
    1. Identify how the evidence is relevant to the existence of a fact in issue; and
    2. Direct the jury not to use the evidence for any other purpose; and
    3. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
    4. If the evidence only forms part of the case against the accused, inform the jury of this fact (Jury Directions Act 2015 s27(2)).
  39. In giving the direction, the judge does not need to:
    1. Explain what the jury should consider in deciding whether to use the evidence as coincidence evidence
    2. Identify impermissible uses of the evidence
    3. Refer to any other matter (Jury Directions Act 2015 s27(3)).
  40. The Jury Directions Act 2015 abolishes the common law obligations in relation to directions on coincidence evidence. This includes the obligation to warn the jury against substitution reasoning (compare R v Grech [1997] 2 VR 609).
  41. The judge will need to explain the concept of "coincidence reasoning" to the jury. For examples on how this can be done, see R v Straffen [1952] 2 QB 911; Pfennig v R (1995) 182 CLR 461.
  42. See "Uses of Coincidence Evidence" above for an outline of how coincidence evidence may be relevant to the existence of a fact in issue.
  43. The judge must not direct the jury to use coincidence evidence in a manner which is not relevant in the circumstances of the case. For example, judges must not invite the jury to use coincidence reasoning to determine whether the acts were voluntary and intentional when the only issue was whether the acts were committed at all (Murdoch v R (2013) 40 VR 451).
  44. To assist with this task, it will usually be helpful 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 (see, e.g., HML & Ors v R (2008) 235 CLR 334 per Hayne J).
  45. Judges should avoid using the term "uncharged acts" when describing coincidence evidence, as it may invite speculation about why no charges were laid (HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).
  46. To assist with this task, it will usually be helpful 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 per Hayne J).
  47. As coincidence reasoning is a particular species of inferential reasoning, the judge should give a direction on inferences and relate the topic of inferences to the coincidence reasoning direction (R v Buckley (2004) 10 VR 215. See also Circumstantial Evidence and Inferences).
  48. The judge should not direct the jury that they must be satisfied that the evidence reveals a "striking similarity" or other such feature before they can use the evidence. The direction must focus on the purposes for which the evidence may be used and not the reasons for its admissibility (R v Papamitrou (2004) 7 VR 375).

    Standard of proof

  49. As coincidence evidence is circumstantial evidence, it generally does not need to be proved beyond reasonable doubt (Jury Directions Act 2015 ss61, 62).
  50. An exception to this rule may exist where the evidence involves sequential reasoning from other charged offences. In Dempsey v The Queen, the prosecution involved two alleged instances of armed robbery. The jury was invited to use the similar method in which the offender lured the victims to the relevant location as coincidence evidence to prove the identity of the offender. The Court held that the jury could not use the method of committing the first offence as coincidence evidence showing that the accused committed the second offence unless the jury was satisfied beyond reasonable doubt that the accused committed the first offence. The court noted any direction which allowed the jury to use the commission of the first offence as coincidence evidence without proof to the criminal standard would undermine the standard of proof required to convict in relation to the first offence (Dempsey v The Queen [2019] VSCA 224, [76]).

    Directions where coincidence evidence adduced by the accused about a co-accused

  51. Where coincidence evidence is adduced by an accused about a co-accused, the prosecution or the co-accused may request a direction about that evidence.
  52. In giving a direction about that evidence, the trial judge must
    1. Identify how the evidence is relevant to the existence of a fact in issue; and
    2. Direct the jury not to use the evidence for any other purpose; and
    3. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the co-accused (Jury Directions Act 2015 s28(2)).
  53. In giving the direction, the judge does not need to:
    1. Explain what the jury should consider in deciding whether to use the evidence as coincidence evidence;
    2. Identify impermissible uses of the evidence;
    3. Refer to any other matter (Jury Directions Act 2015 s28(3)).

    Directions where evidence is not admissible as coincidence evidence

  54. 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 may need to warn the jury not to do so (see R v OGD (No 2) (2000) 50 NSWLR 433; Martin v State of Tasmania [2008] TASSC 66; Qualtieri v R [2006] NSWCCA 95; R v Chan [2002] NSWCCA 217; R v Conway (2000) 98 FCR 204; Gipp v R (1998) 194 CLR 106; R v ATM [2000] NSWCCA 475).
  55. If uncharged acts are led as part of a multiple charge indictment, the judge should make it clear that the warning against coincidence reasoning applies to both the charged and uncharged acts (see R v CF [2004] VSCA 212; R v DD (2007) 19 VR 143; [2007] VSCA 317).
  56. There may not be any need to warn the jury against coincidence reasoning when there is little or no risk that the jury will use the evidence to engage in such reasoning. In some cases, a warning against coincidence reasoning can increase the risk of the jury engaging in impermissible coincidence reasoning (FDP v R (2008) 74 NSWLR 645; R v DH [2000] NSWCCA 360; R v Bastan [2009] VSCA 157).
  57. The need for a direction against coincidence reasoning depends on whether the direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss12, 14, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.

    Relationship with separate consideration warning

  58. The warning against coincidence reasoning does not need to use different language to that used in the separate consideration warning, and does not need to be clearly distinct from that warning. The basic requirement is that the warning sufficiently protect against the risk of the jury using impermissible reasoning (see R v DCC (2004) 11 VR 129; R v LRG (2006) 16 VR 89).
  59. A discrete warning against coincidence reasoning will not normally be required when a separate consideration warning is given, as the separate consideration warning will usually protect against such reasoning (KRM v R (2001) 206 CLR 221; R v Loguancio (2000) 1 VR 235; R v Ellul [2008] VSCA 106. See also Charge: Separate Consideration - Multiple Accused and/or Charge: Separate Consideration - Multiple Counts).
  60. When both a warning against coincidence reasoning and a separate consideration warning are given, it will generally not be necessary to expressly relate the warnings. The separate consideration warning will usually adequately protect against the dangers of impermissible reasoning in relation to other charged acts. However, in some cases, it may be necessary to explicitly explain to the jury that the prohibition on coincidence reasoning applies to both charged and uncharged acts (R v PLK [1999] 3 VR 567; R v DCC (2004) 11 VR 129).

    Warning Against Tendency Reasoning

  61. When evidence is led as "coincidence evidence" and not as "tendency evidence", defence counsel may request a warning that the jury not use the evidence as tendency evidence (Jury Directions Act 2015 s29).
  62. See Tendency Evidence for information concerning the content of such a warning.

    Timing of the Charge

  63. Short directions on the use of coincidence evidence which are consistent with the Jury Directions Act 2015 Part 4 Division 2 should be given at the time the evidence is led. Detailed directions may also be given in the final charge (see Jury Directions Act 2015 s10(2); R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510; Qualtieri v R [2006] NSWCCA 95).

    Notes

[1] See "Use of Coincidence Evidence" below for a discussion of some of the facts in issue that coincidence evidence can be used to prove.

[2] Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (R v Nassif [2004] NSWCCA 433; Gardiner v R [2006] NSWCCA 190; KJR v R [2007] NSWCCA 165).

[3] The coincidence rule is subject to a number of exceptions and exclusions. See, e.g., Evidence Act 2008 ss94, 98(2).

[4] See Uniform Evidence Law: Report, ALRC Report 102, 11.19 – 11.25 for a discussion of the change and the reasons behind it.

Last updated: 23 October 2019

In This Section

4.19.1 - Charge: Coincidence Evidence

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings