Edit: The conflict between NSW and Victorian and Tasmanian law was brought into stark relief in KRI v The Queen  VSCA 186, where Neave JA and King AJA said [at 39]:
In considering whether there was a miscarriage of justice because the evidence lacked significant probative value and thus should not have been admitted as tendency or coincidence evidence under ss 97 and 98 of the Evidence Act 2008, there is an apparent conflict between the approach by this Court in BSJ v The Queen on the one hand, and the view of a five judge bench of the New South Wales Court of Appeal in DSJ v The Queen and the Tasmanian Court of Criminal Appeal in J v Tasmania on the other.
This tension between interpretations of the UEA will continue, for now.
|In BSJ v The Queen  VSCA 93 the Court of Appeal considered the Evidence Act 2008’s tendency and coincidence provisions in light of an appeal against conviction and sentence in an incest case. The grounds of appeal tested whether evidence should have been treated as cross-admissible, and whether jury directions were adequate.
One issue for particular consideration was whether the prosecution had to exclude the possibility of concoction between complainants before evidence should be cross-admitted. The Court found that there was not a real possibility that the complaints had been concocted, and implied that a real possibility of concoction means more than there was an opportunity for it to happen. The appeal was dismissed.
BSJ was tried and convicted of incest offences in the County Court. The victims were his four stepdaughters and the offences occurred between 2000 and 2008. His appeal against conviction was initially rejected, and he asked for it to be reconsidered by three judges at the time of his appeal against sentence. Several grounds of appeal were proposed.
The Possibility of Concoction
As part of the ground that argued error in allowing the complaints to be used cross-admissibly as coincidence evidence (there was more than one part to this ground; the rest is discussed further below), the appellant argued that the possibility of concoction between complainants had not been excluded.
The Crown initially took the position that the possibility of concoction between complainants (or contamination, as it was also referred to as) was not relevant to the probative value of the evidence. This stance is contrary to the Court’s interlocutory decision in PNJ v DPP 27 VR 146. In obiter remarks (it not being necessary to decide in light of a Crown concession), Maxwell P, Buchanan and Bongiorno JJA, said [at 26]:
After a review of the authorities, the trial judge concluded that he should consider ‘the real possibility of contamination’, in accordance with the recent decision of the New South Wales Court of Criminal Appeal in AE v R  NSWCCA 52. The court there said:
If two or more persons make similar allegations about another in circumstances in which no possibility of joint concoction exists the allegations may possess significant probative value for the reasons that are explained in Hoch v The Queen … . If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations: Bell JA, Holme and Latham JJ at 44.
The written submission for the Crown filed on the application for leave to appeal sought to maintain the position adopted before the trial judge. In the course of discussion with the Court, however, senior counsel for the Crown accepted that the issue of contamination was relevant to the determination of probative value under s 98 EA and that, if the material before the judge disclosed a reasonable possibility of contamination, then that should be taken into account.
With respect, this concession was properly made. It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the Court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide. If necessary, a voir dire can be conducted, in order to assess whether the claim of contamination is well-founded.
What makes out a real possibility of concoction? Is this a finding that concoction has possibly occurred, or must the Crown exclude the possibility? Is it like a not far-fetched or fanciful real possibility? Does the existence of a real possibility of concoction rob evidence of all probative value, or only some of it?
The Court of Appeal in BSJ v The Queen avoided the creation of a definitive rule. Sometimes the possibility of concoction (or contamination, as it has also been called) will need to be excluded in order for evidence to retain probative value, and at other times not.
Counsel for the Crown encouraged the Court to assume that the complaints were true when deciding the admissibility of the evidence, supported by authorities that hold that whether evidence should be accepted is a matter for the jury. But the Court rejected this submission. As the Court had earlier decided in PNJ, deciding whether the probative value of tendency and coincidence evidence is undermined by the possibility of concoction is an exception to the general rule, in that the task can properly be undertaken by a trial judge without usurping the function of a jury: Hoch v The Queen (1988) 165 CLR 292, at 302.
The Court did agree with the trial jusge that the evidence could be used cross-admissibly. It held that the exclusion of possibility of concoction didn’t mean possible in the sense of ‘could not have occurred’. Rather it seemed to interpret a real possibility as a scenario the court should not ignore (perhaps even rising to the level of an evidentiary foundation).
Maxwell P, Buchanan and Hansen JJA [at 26]:
Counsel for the appellant relied upon the decision of the New South Wales Court of Criminal Appeal in AE v R  NSWCCA 52. There, the trial judge had found that there was no possibility of joint concoction by two sisters, who made similar allegations of sexual misconduct by the accused. The Court of Appeal held that the trial judge erred.
The Court said:
The complainants were sisters and were in contact with one another at the time each made her complaint.
Counsel for the respondent submitted that the prosecution had excluded any real possibility of concoction. We think that contention is correct. It was not put to any of the four complainants at the committal that there was any motive to concoct an allegation that the appellant had sexually abused any of them. There was no evidentiary foundation in the depositions for the proposition that any of the complainants had any reason or motive to concoct their allegations. Further, there was nothing in their contact with each other to suggest any such reason or motive. While a denial by a complainant of concoction of an allegation is not necessarily decisive, in the present case counsel for the appellant at trial did not seek to cross-examine any of the complainants on the voir dire with a view to establish that there was a real risk of concoction and, although counsel cross-examined the complainants at the trial as to the question of concoction, he did not raise again the question of cross-admissibility.
We do not consider that AE lays down a general rule that the possibility of concoction exists where the complainants are sisters who are in contact with each other when complaint has been made. The decision depended upon its own facts. In the present case, the trial judge conducted an inquiry into the possibility of concoction and was satisfied by an examination of the evidence of each of the complainants that the possibility had been excluded. Each complainant knew of complaints by her sister, but his Honour was satisfied that ‘they were not apprised of the detail of the complaints, nor did they discuss the detail of their evidence or read each others statements’. We can perceive no error in the trial judge’s approach or his conclusion.
In R v Robertson (1997) 91 A Crim R 388 the Queensland Court of Appeal contrasted the real chance of concoction with a merely speculative chance.
The Variety of Circumstances
The conduct constituting the offences occurred at different times, in different places, and in a variety of circumstances. It is described in the necessary level of detail between paragraphs 4 and 14. Except for the fact that it was directed at his stepdaughters, was sexually explicit, and implied an interest by the appellant in using his position as stepfather for his own sexual gratification, the offending taken together could not really be said to bear the strikingly similar features often said to strengthen the argument in favour of admissibility (though not essential: NAM v R  VSCA 95, Nettle JA at 26.)
When the evidence was ruled cross-admissible at trial, the jury was directed that evidence could only be used cross-admissibly if the jury found it had likeness to another event. The trial judge instructed the jury members [recounted at 32 of the Court of Appeal judgment]:
Let me illustrate with an example. [KMM] has given evidence that she was washed by the accused man from her early teenage years to at least one occasion when she was 23 or 24. There are similarities in this account with the accounts of the other three sisters, in terms of there being washing or bathing with the accused. However, [KMM] does not describe sexual contact during this washing or bathing so you would not reason that there was a similarity that went beyond the mere fact of washing.
On the other hand, [RMV] and [AAV] both describe sexual conduct in the form of having to wash the accused’s penis in the shower. And [VLV] describes penile penetration in the bath and attempted penetration.
The prosecution argues that there is a similarity in these accounts, in that the accused is using the pretext of bathing or washing to engage in sexual activity. You may use this evidence if you find the accounts are so similar that they cannot be explained by coincidence.
In such a situation you may infer that the only rational explanation for the similarities is that each of the witnesses is telling the truth.
The Court of Appeal (Maxwell P, Buchanan and Hansen JJA) was satisfied that these directions were adequate, and rejected the appeal ground that the directions impermissibly allowed the use of dissimilar events for a coincidence purpose.
The Probative Value v Prejudicial Effect
Tha appellant maintained on the appeal that the prejudicial effect of the evidence was not significantly outweighed by its probative value, and should have been excluded for that reason under s 101.
Maxwell P, Buchanan and Hansen JJA [at 34]:
Counsel for the appellant submitted that, with four sisters testifying that the appellant abused each of them over an extended period of time, there was a very real risk that individual jurors would reason that he must have sexually abused at least one of them and thus, despite directions to the contrary, would have engaged in reasoning that the appellant was the kind of person who was likely to have committed the conduct alleged by the Crown.
Again, the Court of Appeal concluded that the trial judge’s directions had been adequate to ensure that this was not the case.
The appellant had initially been refused leave to appeal the conviction, and had elected for his leave application to be determined by the Court of Appeal together with his sentence appeal. Both were dismissed.