ASSESSING SIGNIFICANT PROBATIVE VALUE: DSJ v R; NS v R
CASE NOTE
Assessing significant probative value
for the purposes of admitting coinci-
dence evidence: DSJ v R; NS v R
By Nicholas Lennings*
Research Officer, Macquarie Law School
Keywords Uniform Evidence Law; Coincidence evidence; Significant probative
value; Role of trial judge and fact-finder; Alternative inferences
Coincidence evidence and the Uniform Evidence Law
undamental to the concept of ‘fair trial’ is the balance to be struck by the
trial judge between allowing the Crown to prove its case with evidence of
F wrongdoing and a defendant’s right to have evidence excluded for
prejudice. The rules of evidence guide the trial judge in achieving that balance.
One such rule that governs the reception of evidence in those Australian jurisdic-
tions that have adopted the Australian Uniform Evidence Law (UEL) is the
coincidence rule. This rule applies to evidence that is used to prove that an
individual did an act or had a state of mind on the basis that it was improbable
that two or more similar events occurred coincidentally. Ordinarily, evidence of
this nature is inadmissible unless 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’.1
Prior to the introduction of the UEL in New South Wales in the form of the
Evidence Act 1995 (NSW), evidence of this type was regulated at common law as
*
BA-Psych LLB (Hons) (Macq); Solicitor, New South Wales; Research Officer, Macquarie Law School;
email: nicholas.lennings@mq.edu.au.
1
Evidence Act 1995 (NSW), s. 98(1)(b) (emphasis added). There is also a requirement that the party
intending to adduce such evidence give written notice of its intention to do so: s. 98(1)(a).
doi:10.1350/ijep.2013.17.2.426
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(2013) 17 E&P 202–213 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
ASSESSING SIGNIFICANT PROBATIVE VALUE: DSJ v R; NS v R
‘similar fact evidence’ or ‘propensity evidence’.2 The common law rules relating to
similar fact evidence continue to be applied in some non-UEL jurisdictions.3
Australian common law draws on the decisions of the House of Lords on this issue,
namely, Makin v Attorney-General for New South Wales,4 R v Boardman5 and DPP v P.6 In
DPP v P, Lord Mackay stated that ‘the essential feature of evidence which is to be
admitted is that its probative force in support of the allegation that an accused
person committed a crime is sufficiently great to make it just to admit the
evidence, notwithstanding that it is prejudicial to the accused in tending to show
that he was guilty of another crime’.7
Those rules were reiterated in the Australian context in Pfennig v The Queen in
which it was stated that probative value is to be balanced against prejudicial effect
and that ‘the evidence ought not to be admitted if the trial judge concludes that,
viewed in the context of the prosecution case, there is a reasonable view of it
which is consistent with innocence’.8 That rule is also subject to the qualification
that prior to getting that far, it must be established that the evidence is relevant.9
The common law rules continued to govern the admission of similar fact evidence
(which had long been a component of ‘bad character’)10 in England and Wales
until the introduction of the Criminal Justice Act 2003. That Act abolished the
common law rules in relation to evidence of bad character,11 and established a
statutory ‘gateway’ for the reception of such evidence.12 The Act was intended to
bring about a ‘sea change’ in the law.13 The common law took an exclusionary
approach, subject to the inclusionary exception where the probative value was
such that it outweighed the significant risk of unfair prejudice. The statutory
scheme established by the Act reverses this approach, so that provided bad
2
See, for example, Makin v Attorney-General for New South Wales [1894] AC 57 at 68, Lord Herschell.
3
For example, Queensland continues to apply the common law rules relating to such evidence:
BBH v The Queen [2012] HCA 9, (2012) 245 CLR 499 at [50] ff.
4
[1894] AC 57.
5
[1975] AC 421.
6
[1991] 2 AC 447.
7
Ibid. at 465. See also R v Boardman [1975] AC 421.
8
[1995] HCA 7, (1995) 182 CLR 461 at 485, Mason CJ, Deane and Dawson JJ. In terms of the continued
application of the Pfennig test, see Phillips v The Queen [2006] HCA 4, (2006) 225 CLR 303 at [64].
9
Hoch v The Queen [1988] HCA 50, (1988) 165 CLR 292 at 296, Mason CJ, Wilson and Gaudron JJ; BBH v
The Queen [2012] HCA 9, (2012) 245 CLR 499 at [54].
10 See discussion in P. Murphy, Murphy on Evidence, 11th edn (Oxford University Press: Oxford, 2009)
170–4.
11 Criminal Justice Act 2003, s. 99(1).
12 Criminal Justice Act 2003, s. 101(3); see R v Freeman; R v Crawford [2008] EWCA Crim 1863, [2009] 1
WLR 2723 at [17].
13 R v Chopra [2006] EWCA Crim 2133, [2007] 1 Cr App R 225.
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CASE NOTE
character is relevant to an important matter in issue between the defendant and
the prosecution, it is prima facie admissible.14 However, this presumption is
qualified by a provision requiring exclusion where reception of the evidence
would have an adverse impact on the fairness of the proceedings.15 In this respect,
the provisions of the UEL bear closer resemblance to the common law that they
replaced.16 The general position is that coincidence evidence is inadmissible,
although this is subject to an inclusionary exception for evidence that has ‘signif-
icant probative value’.17
Under the UEL, the first criterion for the admission of any evidence is that it must
be relevant,18 that is, it must be capable of ‘rationally affect[ing] (directly or
indirectly) the assessment of the probability of the existence of a fact in issue’.
Probative value is defined in the Dictionary in substantially identical terms,19
indicating that an assessment of probative value is a ‘question of relevance’.20 In
this respect, the UEL reflects the relevance requirements at common law,21 albeit
that whereas relevance is an absolute,22 probative value is assessed on a
continuum.23 In terms of the admission of evidence for a coincidence purpose
under s. 98, however, more is required than mere relevance. Whereas previously a
balancing exercise between probative force and prejudicial effect was required,
now, coincidence evidence is admissible if it has ‘significant probative value’.24
Prejudicial effect is still considered in relation to criminal proceedings by way of s.
101 of the Evidence Act 1995, insofar as the probative value of the evidence must
‘substantially outweigh’ the prejudicial effect, but there is now a degree of
separation between the two considerations. The UEL is silent on the question of
how significant probative value is to be determined. The position at common law
retains substantial relevance in this respect.25 For example, the similarity between
the events and the number of alleged instances will need to be considered in
14 R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
15 Criminal Justice Act 2003, s. 101(3).
16 See Australian Law Reform Commission, Evidence, Report No. 38 (1987) paras. 175–176.
17 Evidence Act 1995 (NSW), s. 98.
18 Evidence Act 1995 (NSW), s. 55.
19 Whether or not the effect of the words ‘if it were accepted’ in s. 55 changes the way in which the
two terms should be construed is the subject...
