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4.19.1 - Charge: Coincidence Evidence

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When to Use This Charge

This charge may be given where a direction has been requested regarding coincidence evidence called by the prosecution

A short direction based on this charge should be given at the time the evidence is led.

Alternative Charges

If evidence has been admitted to prove that the accused had a tendency to act in a particular manner or with a particular state of mind, and that evidence does not demonstrate that the accused had an improper sexual interest in the complainant, use Charge: Tendency Evidence (General Charge).

If evidence that the accused had animproper sexual interest in the complainant has been admitted as tendency evidence, use Charge: Tendency Evidence (Sexual Interest Evidence).

If evidence is led of other discreditable acts of the accused which are not directly relevant to a fact in issue, or is adduced to help the jury understand the context of the alleged offending, use Charge: Other forms of other misconduct evidence.

 

Members of the jury, the prosecution has led evidence that [identify relevant coincidence evidence].

Using Coincidence Evidence to bolster credit

[If the evidence is used to bolster the credit of witnesses or complainants, add the following shaded section.]

The prosecution says that this evidence is relevant because it is most unlikely that several [witnesses/complainants], each of whom seems to be independent of the other, would give such similar accounts unless those accounts were both truthful and accurate. In other words, the prosecution says that it is most unlikely that several such [witnesses/complainants] would independently have told the same lie.

I direct you that it is open to you to reason in this way. However, before you can do so, you must first accept that such similarities as you find in the witness’ evidence are not the product of any collusion on their part, or of innocent contamination.[1]

Using Coincidence Evidence to Prove a Voluntary Act

[If the evidence is used to prove that the accused acted voluntarily, add the following shaded section.]

The prosecution say that this evidence is relevant to prove that the accused acted voluntarily when s/he [describe relevant act]. The prosecution argues that there is such a similarity between [describe relevant coincidence evidence] and the evidence of [identity relevant act] that it is most unlikely that the accused was not acting voluntarily when [describe relevant acts].

Using Coincidence Evidence to Rebut a Defence Argument

[If the evidence is used to rebut a defence argument, add the following shaded section.]

The prosecution say that this evidence is relevant because it allows you to conclude that [describe relevant defence argument in the negative, e.g., that the deceased did not die of natural causes]. The prosecution argues that there is such a similarity between this evidence and the evidence of [identify relevant evidence] that it is most unlikely that [describe relevant defence argument in the positive, e.g. that the deceased died of natural causes]. Remember that, while the accused raised this matter as a defence, the onus of proof rests on the prosecution.

Using Coincidence Evidence to Prove the Identity of the Offender

[If evidence of several separate offences is used to prove the identity of the offender, add the following shaded section.]

The prosecution say the similarities between [identify similarly committed offence] and the [describe charged offence] are so great that you should find that the same person is responsible for each offence. The prosecution then say that if you find NOA committed [identify similarly committed offence], then you can use that to conclude that s/he also committed [identify charged offence].

[Identify relevant prosecution and defence evidence and arguments on whether the jury should use the coincidence evidence]

You must keep this evidence in perspective. It is only one part of the prosecution’s case.[2] As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [describe relevant purpose]. You must not use the evidence for any other purpose.

Notes

[1] If evidence emerges of an opportunity for contamination between the witnesses, the judge may add that following sample direction:

You will recall that NOW1 said, during examination in chief, that he spoke to NOW2 about the allegations for 10 minutes on the day he went to the police station. In cross-examination, NOW1 admitted that the conversation may have taken half an hour. There is no suggestion that NOW1 and NOW2 have jointly fabricated their accounts. However, before you can use the existence of similarities in their accounts, you must exclude a reasonable possibility that NOW1 or NOW2 subconsciously changed his account, and introduced those similarities, because of that conversation.

[2] If the other misconduct evidence is the whole of the prosecution case, then this sentence should be omitted.

Last updated: 9 March 2017

See Also

4.19 - Coincidence Evidence