The scope of s 98—is it too narrow?
11.18 The critical provisions of s 98 of the uniform Evidence Acts are as follows:
(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or
(b) the court thinks that the evidence would not, 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.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar; and
(b) the circumstances in which they occurred are substantially similar.
11.19 Like s 97, this section applies in both civil and criminal proceedings. For the section to apply, the evidence must satisfy the definition of ‘related events’ in subsection (2). As pointed out in IP 28, that definition has the effect that the intended controls on admissibility only apply if the events and circumstances in which the events occurred are substantially similar. Paradoxically, therefore, there is a test of admissibility for ‘related events’ (which, if they satisfy the subsection (2) definition, will satisfy the admissibility test) but not a test for unrelated events. As a result, s 98 will not apply to exclude evidence where the events are not substantially and relevantly similar, or the circumstances in which they occurred are not substantially similar. In addition, the other intended control, s 101, will have no application. However, such evidence should be excluded because it will probably be of little probative significance or value.
The proposals in DP 69
11.20 Several options for amendment were canvassed in DP 69. A draft provision representing the preferred option was included and is as follows:
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to the similarities in the events and the similarities in the circumstances surrounding them, it is improbable that the events occurred coincidentally unless:
(a) the party adducing the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence would, 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.
Submissions and consultations
11.21 There was support for addressing the problem in the manner suggested. Submissions were also received arguing for a less stringent approach and a more stringent approach. The latter involved the addition of a new subsection (2) as follows:
(2) For the purposes of sub-s. (1)(b), the evidence only has significant probative value if:
(a) the events are strikingly and relevantly similar; and
(b) the circumstances in which they occurred are strikingly and relevantly similar.
11.22 While the draft provision in DP 69 requires consideration of similarities in events and circumstances, it does not require, in contradistinction to the suggested alternative, that there be similarities in both the events and circumstances and that the similarities be striking.
11.23 Another issue that arose is whether a party tendering evidence of prior conduct can avoid the operation of the provision put forward in DP 69 by taking the position that it is not intended to rely on similarities in the circumstances of the events and, therefore, the section does not apply.
The Commissions’ view
11.24 The Commissions’ view is that to require both a striking similarity of events and a striking similarity of circumstances would be to raise the threshold too high and would be likely to exclude highly probative evidence. For example, highly probative evidence of unusual, similar acts occurring in different circumstances would be excluded. It should be borne in mind that this provision is intended as a preliminary screening provision for civil as well as criminal proceedings. Care must be taken not to set the proposed threshold too high. The Commissions consider that the amendment as drafted in DP 69 strikes the appropriate balance.
11.25 As to the other issue raised concerning avoidance of the provision, the argument assumes that the proposed amended section would only apply if the reasoning process employed for the tendering party depends on both similarities between the events and similarities between the circumstances surrounding them. The intention of the proposal is that s 98 will apply where the tendering party argues that the evidence is relevant to the issues in the case on the basis of improbability reasoning and that reasoning turns on similarities between the events, or in the circumstances surrounding those events, or both. The Commissions’ view is that the terms of the recommendation and the suggested draft provision make either or both bases relevant to the test so that if the tendering party sought to limit the reasoning process to similarities of the events the section would still apply. However, the Commissions want to put this issue beyond argument. The recommendation has been amended to make the intention clearer by inserting the word ‘any’ before ‘similarities’. A draft provision is set out in Appendix 1.
Recommendation 11–1 Section 98(1) of the uniform Evidence Acts should be amended to provide that: evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events and any similarities in the circumstances surrounding them, it is improbable that the events occurred coincidentally unless the party adducing the evidence gives reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, has significant probative value.
Section 98—‘2 or more’ events
11.26 Another issue considered in DP 69 was whether the events referred to by the expression ‘2 or more’ events include the event in question in the proceeding. Some commentators suggest that the section is ambiguous on this issue.
11.27 In DP 69, the Commissions commented that it was the intention of the original ALRC proposals that the events which are the subject of the charge would be included in appropriate cases. That is, in fact, typical of cases where coincidence reasoning is employed. For example, if the Crown has evidence that the accused committed another substantially similar crime, the evidence could go to the jury on the basis that, if satisfied beyond reasonable doubt that: (i) the accused committed the other substantially similar crime; and (ii) that the same person committed that crime and the crime charged, the jury should be satisfied that it was the accused who committed the crime with which he or she is charged.
11.28 The Commissions concluded that there is, in fact, no ambiguity.
Submissions and consultations
11.29 The issue is raised, however, in discussion of DP 69. Plainly, the construction that the Commissions regarded as reasonably clear is not clear to everyone who reads the section, particularly those new to the uniform Evidence Acts. The suggestion was made that the desired interpretation should be made clear by amendment or by a note to the section.
The Commissions’ view
11.30 The issue of the ease of interpretation remains a real one, particularly for those not familiar with the legislation. In the interest of ease of application and clarity, the issue needs to be addressed. The Commissions’ view is that it will be sufficient to do so by inserting a note to the uniform Evidence Acts stating the effect of the section.
Recommendation 11–2 To clarify the effect of the provision, a note should be added to s 98 of the uniform Evidence Acts stating that the events that may be considered include an event which is the subject of the proceeding.
 See discussion of the concept ‘probative value’ in Ch 3.
Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [8.20].
J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 319–320.
 See definitions of ‘tendency evidence’ and ‘coincidence evidence’ in the Dictionary to the uniform Evidence Acts.
Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Appendix 1, 547.
Confidential, Submission E 63, 29 August 2005; Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Victoria Police states that it has no comment other than a concern that the notice ‘may present’ difficulties for police prosecutors in summary matters: Victoria Police, Submission E 111, 30 September 2005; A Cossins, Consultation, Sydney, 3 August 2005; Commonwealth Director of Public Prosecutions, Consultation, Canberra, 25 August 2005; J Gans, Consultation, Melbourne, 17 August 2005 (but queries whether the use of ‘similarities’ might unduly confine the operation of the section); Western Australian Bar Association, Consultation, Perth, 6 October 2005.
Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005 argues for evidence to be prima facie admissible if relevant.
Confidential, Submission E 63, 29 August 2005.
 For example, evidence in a matter in which a person suing on an insurance policy for accidental fire damage to his or her property who has had the misfortune of five fires causing damage to other insured property in the previous three years but where the circumstances of each fire were different.
J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [98.20].
Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [10.28].
Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 This was the approach taken in R v Milat (Unreported, New South Wales Supreme Court, Hunt CJ at CL, 5 September 1996).
Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 30 August 2005.