After a hearing by the Full Court, the High Court has refused special leave an appeal against a decision of the NSW Court of Criminal Appeal relating to the admissibility of coincidence evidence and probative value. Versi was convicted of two counts of sexual assault against his stepdaughter in the mid-1980s. At trial, witness SD1, a previous stepdaughter of Versi, gave evidence in relation to count two and alleged that he also engaged in sexual conduct with her in 1979, when SD1 was 13. The trial judge instructed the jury that SD1’s evidence was only relevant to count 2 as coincidence evidence. Section 98 of the Evidence Act 1995 (NSW) requires that the court be satisfied that the evidence has ‘significant probative value’, and that the evidence is tendered to show that a person did an act on the basis that similarities in events or circumstances make it improbable that it was merely a coincidence. Section 101 provides that coincidence evidence cannot be used unless its probative value substantially outweighs any prejudicial effect on the defendant. The applicant claims that the NSWCCA used SD1’s evidence contrary to the instructions of the trial judge, and consequently failed to apply ss 98 and 101.

After a short hearing on 14 August 2014 by the Full Court, the Court held that the applicant had not demonstrated that there was danger of unfair prejudice giving rise to a miscarriage of justice on the basis of the use of tendency reasoning. Consequently the applicant had not shown that the trial judge and Court of Criminal Appeal had failed to adequately consider the probative value of the coincidence evidence, or the prejudice arising from that evidence being admitted at trial. Special leave was refused.