The Queen v Penrose (Ruling No 2) [2016] VSC 191 (16 February 2016)

Last Updated: 28 April 2016

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

S CR 2015 0006

THE QUEEN
v
BRETT NOEL PENROSE	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2016
DATE OF RULING:	16 February 2016
CASE MAY BE CITED AS:	R v Penrose (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 191

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EVIDENCE – Coincidence evidence – Evidence Act 2008 ss 98, 101 – Accused charged with recklessly causing serious injury, and manslaughter – Identity of offender – Whether or not evidence relevant on Charge 1 relevant on Charge 2 – Similarity of circumstances of events surrounding the alleged offending on each Charge – Whether or not the evidence has significant probative value – Whether or not the probative value is outweighed by prejudice to the accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg Ms M. O’Brien	Office of Public Prosecutions
For the Accused	Mr J. Kelly	Leanne Warren & Associates

HIS HONOUR:

1 Brett Penrose has been indicted on two charges:

Charge 1: That on or about 8 December 2004, at Wodonga, without lawful excuse, he recklessly caused serious injury to Charlotte Rose Keen (s 17 Crimes Act 1958).

Charge 2: That on 17 December 2004, at Parkville, he killed Charlotte Rose Keen (Manslaughter – Common Law).

2 On Charge 2, the prosecution case is that the acts that caused the death were carried out by the accused on either the evening of 11 December or the early morning of 12 December 2004. I may refer to the circumstances of Charge 1 as ‘event 1’, and of Charge 2 as ‘event 2’.

3 The trial came on for hearing before Lasry J in early November 2015. Mr Kelly, who appears for the accused, made a submission that the indictment ought be severed and that the trial proceed on Count 2. Ms Borg, who prosecutes, opposed this application.

His Honour acceded to the defence submission and severed the indictment.^[1]

4 The prosecution sought leave before the Court of Appeal to appeal the severance ruling. Leave was refused.[2] During argument on the leave application, various members of the Court expressed the view that if the evidence surrounding Charge 1 were to be cross-admissible on Charge 2 it could only be through the gateway of coincidence evidence (s 98(1)). Up until that time the prosecution had not contended that the evidence relating to Charge 1 was cross-admissible with the evidence on Charge 2 on a coincidence basis.[3]

5 On 2 February 2016, the prosecution served a Coincidence Notice on the accused. Relevantly, it read:

Table A – Relevant fact(s) in issue

CHARGE	FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES
1	Whether the accused recklessly caused the serious injury to Charlotte Keen.
2	Whether the accused killed Charlotte Keen (unlawful and dangerous act Manslaughter).

4. The coincidence evidence will be adduced to prove that:

(a) BRETT NOEL PENROSE did a particular act, namely:

He caused the injuries the subject of charge 1 and 2.

5. As indicated in Table B below, the two or more events of which evidence will be adduced, and particulars of the date, time & place at & the circumstances in which each of the events occurred, and the name of each person who saw, heard or otherwise perceived each of those events, are:

BRIEF SUMMARY OF ARGUMENT – COINCIDENCE REASONING

First incident:

1. On Wednesday the 8^th of December 2004, at approximately 12.15am, Renee Jones left her 11 month old infant (Charlotte Keen) with Brett Noel Penrose at their home at 2 Phefley Court, Wodonga. The infant was asleep when Renee Jones left the house. At the time Renee Jones left the child she was in good health.
2. The reason for Renee Jones leaving Charlotte with Brett Penrose was so that she could attend a truck stop (where the truck Mr.Penrose had just driven on a long haul trip for work was situated) and clean out the truck.
3. Renee took Penrose’s car to the truck stop. She had one of Penrose’s mobile phones with her. Renee went straight down to the truck stop and cleaned out the truck. She then went into the truck stop and bought a couple of ham, cheese and tomato toasted sandwiches and went home. Whilst at the truck stop Renee became aware that Penrose had rung her a few times. She didn’t hear the phone ring as it was in the car but saw that there were 2-3 missed calls from him. She spoke to Penrose whilst she was at the truck stop. She thought Penrose sounded teary but he told her he was ok. He said he had rung in order to ask her to bring his mobile phone home. Renee used the ATM at the truck stop, withdrawing $500 from Penrose’s credit card (at his request) and then went home.
4. When she got home Penrose was teary. He looked emotional. He said he had gotten a letter or call from the real estate agent saying they were getting evicted.

5. He also told her that Charlotte had woken up shortly after Renee had left to go to the truck stop and only returned to sleep shortly before she returned home. She had been gone approximately 45 minutes.
6. Later that morning Renee Jones saw a bruise on Charlotte’s left cheek, a small bruise on her cheek bone of her right cheek and a bruise around her ear.
7. During the course of the day Charlotte’s right upper arm also appeared swollen. A further inspection of Charlotte in the presence of Renee’s friend Krystal Lanyon at around lunchtime, revealed what looked like thumb marks underneath Charlotte’s armpits. Renee rang Penrose and told him of the bruises. He insisted that she wait for him before taking Charlotte down to the hospital. Renee waited, however Penrose did not return home until 2am on Thursday morning when Charlotte was already asleep.
8. The next morning, Thursday the 9^th of December 2004, Renee Jones noticed that the infant could not crawl as she could not hold her weight with the swollen arm. Renee Jones took Charlotte to her doctor (Dr. Finlay) who ordered an x-ray of the arm.
9. The x-rays were taken on Friday the 10^th of December 2004, and Renee Jones was told that Charlotte right arm was not broken, however, on 12^th December 2004, further x-rays were taken from a different angle and a proximal fracture of the right humerus was confirmed.

The second incident:

10. On Saturday the 11^th of December 2004, at approximately 8.30pm, Renee Jones left her 11 month old infant (Charlotte Keen) with Brett Noel Penrose at their home at 2 Phefley Court, Wodonga. The infant was asleep when Renee Jones left the house. Renee Jones did not return home until 6.30am the next day. The entire time Renee Jones was away from the home (approximately 10 hours) she was in the company of friends.
11. When she returned home on Sunday the 12^th of December 2004, she did so in the company of her friend Brooke Williams.
12. Renee spoke briefly to Penrose who told her that Charlotte had vomited during the night and he changed her and her bedding. Renee Jones quickly checked on Charlotte who was still asleep and then went into her own bedroom with Brooke where they chatted before falling asleep at approximately 6.45am.
13. At approximately 8.00am Renee Jones went to check on Charlotte and realised that Charlotte was unable to support her head and appeared dazed. She rolled the infant onto her back and the child seemed unable to focus. An ambulance was called and Charlotte was taken to hospital where she died on 17^th of December 2004.

Cause of death:

14. The cause of death was determined to be from ‘complications of a head injury in an infant with multiple bruises and a fractured humerus’.

Coincidence reasoning:

15. The prosecution rely on coincidence reasoning in order to prove that the person who inflicted the injuries on Charlotte Keen on the 8^th of December 2004 (charge 1 – recklessly cause serious injury) is also the person who inflicted the injuries on Charlotte Keen on the evening of 11^th or the morning of the 12^th of December 2004 (charge 2 – manslaughter). (See Coincidence Notice served by the Crown – per s 98(1)(a)).

16. That person is alleged to be Brett Penrose.

17. For coincidence evidence to be admissible it must, either by itself or having regard to other evidence adduced have significant probative value (s.98(1)(b) of the Evidence Act 2008 ‘the Act”).
18. The probative force, in this case, flows from two strands. Firstly, the similarity of the acts in question and secondly, the improbability that 2 different perpetrators were involved given the nature of the crime and the short time frame between the two acts.

The similarity of the acts in question:

19. The Acts are comprised of 2 occasions where:

• Charlotte Keen was physically assaulted (non-accidental injuries).
• The injuries from each assault was sighted shortly after the child was in the sole care of the accused.
• The accused admits the child awoke and was attended to by him during times where she was in his sole care, and,
• The two assaults occurred within a short period of time of each other.

The improbability of 2 different perpetrators:

20. Once the facts in the first strand are established, it is improbable (given the nature of the assaults and the type of victim), that 2 different perpetrators were involved.
21. At the time of the assaults the child was just shy of her first birthday. The assaults were so severe on each occasion, that on the first occasion she was left with substantial bruising and a broken humerus, and on the second occasion further bruising and a brain injury. Such assaults are of themselves highly unusual.
22. it is improbable for 2 different perpetrators to be involved in an assault upon the same child on 2 occasions within days of each other.
23. The prosecution submits that given the accused was left alone with the infant on two occasions immediately prior to injuries being observed on the infant by her mother, it would be most improbable that someone other than the accused was responsible for the injuries to the infant Charlotte Rose Keen. In other words, it is improbable that the events can be explained by mere coincidence.
24. The offences, forming a pattern, it is contended that it is highly likely the accused was responsible for each incident.

DESCRIPTION OF EVENT	DATE	PLACE	WITNESS(ES)
Charge 1 – Recklessly cause serious injury through an assault on Charlotte Keen	8 December 2004	2 Phefley Court, Wodonga	Renee Jones
Charges 2 – Manslaughter (unlawful and dangerous act) through an assault on Charlotte Keen	11/12 December 2004	2 Phefley Court, Wodonga (However Charlotte died at the Royal Children’s Hospital in Parkville)	Renee Jones

6. As indicated in Table C below, the substance of the evidence of the two or more events which the Prosecution intends to adduce is contained in the document(s) attached and/or the document(s) which has/have been served previously upon BRETT NOEL PENROSE.

Table C – Substance of the evidence of two or more events

Charge 1 1st assault on Charlotte

8 & 9 December 2004

2 Phefley Court, Wodonga

Observations of Renee Jones prior to and after leaving Charlotte with Brett Penrose.

Renee JONES deps p560, 561, 1065-1069. All related medical evidence.

Charge 2 2nd assault on Charlotte

11 & 12 December 2004

2 Phefley Court, Wodonga

Observations of Renee Jones prior to and after leaving Charlotte with Brett Penrose.

Renee JONES deps p561, 562, 1070-1071. All related medical evidence.

Submissions

6 The defence contended that the impugned evidence is prima facie inadmissible (s 98(1)) and that any similarities between the surrounding facts in Charge 1 and Charge 2 fall well short of possessing the significant probative value required by s 98(1)(b) of the Evidence Act 2008 (‘the Act’) for its reception into evidence. Alternatively, Mr Kelly contended that the probative value of the impugned evidence did not substantially outweigh any prejudicial effect that may be occasioned to the accused (s 101 of the Act).

7 The prosecution argued that whilst the circumstances of Charge 1 and 2 were not exactly parallel, there are sufficient similarities in the overall context of the case to satisfy s 98(1)(b). The same similarities provided a probative value that substantially outweighed any prejudicial effect upon the accused. I shall return to the substance of both counsels’ arguments after I have reviewed some of the relevant evidence. What follows is not intended to be an exhaustive account of that evidence.

8 Evidence

Charge 1

• Charlotte Keen was a little over 11 months old in early December 2004.
• Graeme Keen and Renee Jones were Charlotte’s parents.
• In about May 2004 the relationship between Mr Keen and Ms Jones broke down and they separated.
• Some time later, Mr Penrose commenced a relationship with Ms Jones.
• On about 20 November 2004, Mr Penrose, Ms Jones and Charlotte moved into a house in Wodonga.
• Mr Penrose was a truck driver in 2004.
• On Sunday 5 December 2004, Mr Penrose commenced to drive his truck from Wodonga to Brisbane and back. Ms Jones accompanied him. Charlotte was left in the care of others. They returned on Tuesday 7 December 2004 at about 11.00 to 11.30 pm.
• From 5 December 2004 to late on 7 December 2004, Charlotte was in the care of (in this order) Graham Keen and Melissa King, Amanda Jones^[4], Jessica Phelps,^[5] Amanda Jones and Justin Eastman.^[6] Charlotte was in the care of Amanda Jones and Justin Eastman when Renee Jones picked her up some time after 11.30 pm on 7 December 2004.
• Each of these custodians say that when Charlotte was in his or her care she suffered no injuries.
• Graham Keen says that when he picked Charlotte up on 5 December 2004 she had a small lump/bump on her forehead. He thought it happened at Renee Jones’ house, he didn’t see it happen but heard Charlotte cry out.
• Amanda Jones observed some ‘kid scratches’ under Charlotte’s left eye and some old yellowing bruises under her left eye, right upper forehead and lower back.
• Charlotte was teething at this time.
• Each of these custodians say Charlotte was generally settled, healthy and happy during this time.
• Renee Jones carried Charlotte out to Mr Penrose’s car at about 11.30 - 11.45 pm on 7 December 2004. Mr Penrose did not come inside.
• Charlotte was taken home to Mr Penrose/Ms Jones’ house. She was placed in her cot and given a bottle. Ms Jones says Charlotte seemed fine to her at this time.
• Ms Jones left the house at approximately 12.15 am on Wednesday 8 December 2014 for a period approximately 45 minutes. She cleaned out the truck and purchased toasted sandwiches. She says she became aware Mr Penrose had tried to contact her.
• Ms Jones says she spoke to Mr Penrose over the phone at this time and he sounded teary. He requested her to retrieve his mobile phone (in the truck) and withdraw money from an ATM. She did this.
• Ms Jones says that when she got home Mr Penrose was teary and ‘looked emotional’. Mr Penrose told her he had gotten a letter from a real estate agent saying they were getting evicted. He also told Ms Jones that Charlotte had woken shortly after Ms Jones left to go to the truck stop and only resumed sleep shortly before she returned.
• At around 9.00 am on 8 December 2004, Charlotte awoke. About 15 minutes later, Ms Jones gave Charlotte a bottle and Charlotte fell asleep again.
• Ms Jones states that sometime later on 8 December she saw bruises on Charlotte’s left cheek, right cheek bone and in the ear area. Ms Jones gave Charlotte liquid Panadol.
• At around 10:00 am, Renee Jones had called her sister Amanda and asked if the baby had fallen over. Amanda denied that the baby had fallen over.
• At around lunchtime on 8 December, Krystal Lanyon arrived at the house. Ms Jones expressed concern to Ms Lanyon that people would think she hit Charlotte and showed Ms Lanyon the bruises. After undressing Charlotte, the women saw marks underneath the baby’s armpits, a tiny bruise on her elbow and a slightly swollen arm. The baby appeared settled. Renee Jones took photos of the baby. She noticed that the baby seemed to have difficulty using her right arm.
• Renee Jones took the baby to the doctor at about 3.45 pm on Thursday 9 December. Dr Findlay observed Charlotte to have some patchy right facial bruising, not in the shape or a hand or finger marks, a small bruise on her left upper arm and a couple on her legs consistent with normal childhood bruising. Ms Jones gave Dr Findlay a history of Charlotte suffering a fall on the right side of her face and some bruising. Dr Findlay observed some swelling of the right shoulder but no bruising.
• Dr Findlay ordered a shoulder x-ray. There were no signs of drowsiness, pupil changes or significant head injury. The x-ray did not demonstrate any bone injury, although upon post-mortem a fracture to the upper right humerus was discovered.

9 On 10 December 2004, Graham Keen observed facial bruises on Charlotte. He took a photo. Renee Jones states that at some time during that day Mr Penrose had told her that his cousin (a nurse) had said babies don’t show bruises for up to five days. Mr Penrose agreed that he did call his cousin to ask about bruising, and was in fact advised that bruises start to show after two or three days.

Charge 2

• On 11 December 2004, Mr Penrose and his two children and Charlotte played together in a swimming pool. Charlotte’s injured arm meant that she spent most of her time in her walker. Renee Jones went to the shops for a time. She also visited a friend between 2.00 pm and about 6.30 pm.
• Renee Jones returned to the house with her two friends Brooke and Kat. Mr Penrose’s children were fed, as was Charlotte. Mr Penrose put Charlotte to bed. At around 8.30 pm, Renee Jones checked on Charlotte and saw that she was asleep. She then left the house with Brook and Kat. She went to the Hotel Elgin with friends and then to a hotel in Albury. She states that she spoke to Mr Penrose at about 3.00 am and he told her not come home. She returned home with Brooke at about 6.30 am on 12 December 2004.
• Ms Jones states that Mr Penrose told that her Charlotte had been sick that evening, so he got her out of bed, bathed her, changed her bed and put her clothes in the laundry. He said he put Charlotte in her cot and went to bed.
• At 8.00 am, Ms Jones checked on Charlotte and thought she did not look right. Her head was floppy and she appeared dazed.
• She yelled out. Mr Penrose came into Charlotte’s room and an ambulance was called.
• Charlotte presented at Wodonga Hospital with head injuries and in an altered conscious state. Multiple bruises and scratches to the head and neck were observed, as were bilateral retinal haemorrhages. Her right arm and leg movements were sluggish and she had a dilated left pupil which responded sluggishly to light. Her right shoulder was swollen and a fracture was later observed to be proximal to the right humerus with a mild degree of displacement (probably sustained before the x-ray on 12 December 2004). Subdural haematomas were observed on a CT scan.
• She was transferred to the Royal Children’s Hospital Intensive Care Unit. The neurosurgical team diagnosed a severe closed head injury with left subdural haematoma over the surface of the brain. A decompressive craniotomy was performed. Retinal haemorrhages were observed of the optic fundi. Charlotte’s condition deteriorated and she died on 17 December 2004.
• In statements and interviews, both the accused and Ms Jones have denied harming Charlotte in any way.
• Post-death investigations have determined that there were stains of Charlotte’s blood on the cot, mattress and blanket and on a towel located in the bathroom. One of the wooden slats on the cot was broken.
• Upon post-mortem, Professor Cordner identified approximately 25 bruises, mostly visible, together with a further 12, which were visible upon her admission to hospital but which had healed by the time of Charlotte’s death. As I have said, she was also discovered to have a fractured upper right humerus.
• The number and distribution of these bruises is such that it was Professor Cordner’s opinion that they represent non-accidental injury.
• In Professor Cordner’s opinion, Charlotte was a ‘battered baby’. In the absence of some plausible accidental account, the fractured humerus also formed part of this ‘battered baby’ constellation. It was his opinion that the head injury which caused death could be the result of blunt impact and/or a shaking-type injury. The nerve root damage suggests that a shaking injury occurred at some point.
• Professor Cordner was of the view that while Charlotte was clinically well it is unlikely that she sustained a significant head injury.

Legal principles

10 Coincidence evidence is evidence that two or more events occurred, adduced to prove (in this case) that the accused did a particular act or acts on the basis that, having regard to any similarities in the events alleged and their surrounding circumstances, it is improbable that the events occurred coincidentally.[7] The touchstone of this form of admissibility is similarity.[8] Circumstances or events do not need to be identical for two or more events to be admitted as coincidence evidence, however the degree of similarity will influence whether the evidence has the necessary significant probative value.[9] Striking similarity is not always required for coincidence evidence to have significant probative value;[10] nor does evidence need to have features of ‘underlying unity, or pattern, or signature or system’,[11] although such characteristics will assist the party seeking to introduce the evidence in demonstrating that the evidence has significant probative value. Regardless of the phrase used to describe the evidence or circumstances said to be related, the relationship must be sufficiently strong that it is highly unlikely that the events or their surrounding circumstances could be explained by mere coincidence.

11 In this case, where the prosecution seeks to adduce evidence to prove that the accused was the person who caused the death of Charlotte[12] (that is, to prove the identity of the offender) the risk of prejudice is very high.[13] In cases where there is no direct evidence of the accused’s commission of an offence, the need for close similarity is greater.[14]

Analysis

12 The coincidence notice sets out the object of the prosecution in endeavouring to adduce the impugned evidence. It is to establish the identity of the person who caused the injuries the subject of Charges 1 and 2. In argument Ms Borg clarified this. If the jury were satisfied beyond reasonable doubt that the accused was guilty of Charge 1, then, she contended, it could use this finding in determining the identity of Charlotte’s assailant in Charge 2.

13 There is no direct evidence of any assault upon Charlotte, either by the accused, her mother, or any other of the many people who purported to care for her over the last few days of her life in Wodonga. The prosecution, as I have said, seek to rely on coincidence reasoning to prove that the person who inflicted injuries on Charlotte on 7/8 December 2004 is also the person who inflicted injuries on her either late on 11 or early on 12 December 2004. In written and oral submissions, the prosecution contends the following similarities can be distilled from the two events:

(a) Charlotte was physically assaulted on both occasions;

(b) the injuries from each assault were sighted shortly after the child was in the sole care of the accused;

(c) the accused admitted that the child awoke and was attended to by him during two relevant times when she was in his care;

(d) the two assaults occurred within a short time of each other; and

(e) on each of the two occasions while the accused cared for the child, she was in her cot for most, if not all, of the time.

14 The prosecution argues that once these facts are established, it is improbable (given the nature of the assaults and the type of victim) that two different perpetrators were involved. Each assault was severe and they were within days of each other.

15 The defence accept that the injuries that led to Charlotte’s death must have been the product of the application of force to Charlotte; either blunt force or shaking or both. The central issue in relation to the manslaughter charge is the identity of the offender and not whether the offence itself has been committed. Insofar as Charge 1 is concerned, no such concession is made. Mr Kelly contends that (absent coincidence reasoning) there is a respectable prospect either that (a) the injuries observed were accidental; or (b) if they were not inflicted accidentally, they were inflicted by another person. My evaluation of the probative value of the Charge 1 evidence as it relates to Charge 2 involves consideration of these contentions.

16 I have reviewed the evidence of Dr Findlay earlier in these reasons. It will be recalled that there was patchy facial bruising, a one centimetre bruise on Charlotte’s left upper arm and a couple on her legs, consistent with normal childhood bruising. I consider the shoulder swelling he observed is likely related to the fracture of the humerus observed several days later at post mortem. It will also be recalled that Ms Jones gave Dr Findlay a history of the child suffering a fall. By itself, I doubt this evidence is sufficient to prove that Charlotte was assaulted on 7/8 December 2004. The prosecution rely on some other evidence that may tend to suggest that Charlotte was assaulted by the accused at that time, including the fact that she was undoubtedly assaulted by someone a few days later, that the accused told lies to Ms Jones about speaking to his cousin about the baby’s bruises, and that the accused lied to Ms Jones about receiving a notice of eviction to explain his emotional state.

17 Notwithstanding these features, I do not regard the probative value of the Charge 1 evidence as it relates to Charge 2 as significant within the meaning of s 98 in the context of Charge 2. In particular, in my view –

(a) the injuries observed by Dr Findlay on 9 December 2004, together with the fractured humerus, could have been the result of a fall (Professor Cordner also made a concession to this effect);

(b) Charlotte had been in the care of many people between 5 and 7 December 2004, while the accused and Ms Jones had been interstate;

(c) the prosecution case in relation to both charges relies heavily on the credit of Renee Jones, who describes seeing both sets of injuries after the accused had sole care of the child. This is a relevant consideration in my evaluation of the probative value of the coincidence evidence.^[15] It is very difficult to judge the credibility of a witness in advance, but given the history given to Dr Findlay, together with other aspects of Ms Jones’ parenting and lifestyle, it is conceivable that a successful attack will be made on Ms Jones’ credit. It is apparent from the material that Ms Jones herself spent considerable time alone with Charlotte. None of this is intended to suggest that Ms Jones or anyone else is guilty of assaulting Charlotte, however I am obliged to consider the probative value of the impugned evidence in the context of competing hypotheses.

(d) I am not satisfied that the asserted similarities relating to the place and time of the two events amount to much in this analysis. The prosecution contend that on both occasions when the child was left in the care of the accused, the child was asleep in her cot, awoke and was attended by the accused. The infant was 11 months old, teething, and in the accused’s care at night time. These events are commonplace and I do not consider that there is any hallmark, unusual similarity, or similar, that attaches to them;

(e) the fourth similarity alleged by the prosecution is that there is only a few days between the two events. I agree with Mr Kelly that this is more a circumstance than a similarity. It is also a circumstance that Graham Keen, Amanda Jones, Jessica Phillips, Amanda Jones again, Brett Penrose and Renee Jones were all, at times, in sole or joint charge of Charlotte between 5 December 2004 and 9 December 2004 when Charlotte was taken to Dr Findlay (at which time it is highly unlikely that she had suffered any brain injury). Between that time and Charlotte being taken to hospital on 12 December, Renee Jones, Graham Keen,^[16] Brett Penrose and Renee Jones again had either sole or joint care of Charlotte. The ‘similarity’ or circumstance of timing alleged by the prosecution needs to be understood in this context. Charlotte was cared for by the accused, but others as well, between event 1 and event 2, including her mother;

(f) I have set out two instances of alleged incriminating conduct alleged against the accused insofar as Charge 1 is concerned. In considering the body of evidence relating to Charge 1, Mr Kelly contends that the defence may able to point to evidence that undermines the hypothesis that the accused was responsible for Charlotte’s Charge 1 injuries. This evidence includes:

(i) a conversation between Renee Jones and Krystal Lanyon – ‘it looks like I’ve bashed her’, said to have occurred on Ms Lanyon seeing the child on the afternoon of 8 December 2004;

(ii) Ms Lanyon’s assertion that Ms Jones was ‘acting funny’ in a phone conversation of 8 December 2004;

(iii) the history provided to Dr Findlay on 9 December 2004;

(iv) an alleged conversation at 7.15 am on 8 December 2004 between Ms Jones and her father in which she said she could not see him that day as she had a lot to do and had to see a solicitor;

(v) evidence from Krystal Lanyon, Amanda Jones, Adrian Dryden, Taiya Danhiez, Cara Lee Dryden and Graham Keen to the effect that Ms Jones would yell and swear at the infant.

In my view, there is some force in the defence contention that the totality of this evidence would tend to undermine the hypothesis that the accused was responsible for Charlotte’s injuries relating to Charge 1.

18 In the circumstances, I am not satisfied that the evidence relating to Charge 1 has significant probative value within the meaning of s 98(1)(a) as proof that the accused was responsible for killing Charlotte as alleged in Charge 2.

19 In oral argument, Ms Borg pressed relatively faintly another use that may be made of the coincidence evidence in the notice. If the jury were satisfied that an assault occurred in event 2, then they could use this conclusion to infer that the injuries occasioned in event 1 were not accidental. The accused does not dispute that the injuries sustained in event 2 were the product of an assault by someone.

20 This reasoning was not identified in the coincidence notice served on 2 February 2016. The prosecution will prove that Charlotte was at least shaken violently in event 2. Does this circumstance prove or tend to prove that the injuries in event 1 were caused by some form of assault, as opposed to, for instance, a fall? I consider that the comparison between the two events fails to disclose the necessary significant probative value. It may be that it makes the event 1 assault hypothesis slightly more likely, but in my view it does not destroy or substantially damage the event 1 fall hypothesis. There is no direct evidence of either event from which closer similarities can be discerned.

21 If I am wrong in this analysis, and if event 2 does have significant probative value in proving that event 1 was not an accident, I would exclude it in any event under s 101 of the Act. By the time the jury could permissibly consider event 2 as bearing upon event 1, it will have found that the accused man killed Charlotte. I would have to direct the jury that they could not consider event 2 as bearing on event 1 until they found event 2 proved. In considering event 2, they could not consider event 1. In my view, this type of sophistry would be asking too much of the jury. Additionally, the jury would need to be directed that in considering event 1, they could consider event 2 if proven, but only on the issue of whether event 1 was an accident or not. The potential for impermissible reasoning is very high.

22 For these reasons, I do not consider the evidence relating to Charges 1 and 2 is cross-admissible. If it is necessary for me to do so, I direct that the indictment be severed.

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^[1] R v Penrose (Ruling No 1) [2015] VSC 786.

^[2] DPP v Lamb [2015] VSCA 307.

^[3] I note that a Coincidence Evidence Notice was filed on 28 July 2015, however that was not relied upon.

^[4] Renee Jones’ sister.

^[5] A friend of Amanda Jones.

^[6] Amanda Jones’ boyfriend.

^[7] See s 98; also Part 1 of the Dictionary to the Act.

^[8] PNJ v DPP (Vic) [2010] VSCA 88; (2010) 27 VR 146.

^[9] Samadi and Djait v R [2008] NSWCCA 330 at [85].

^[10] CW v The Queen [2001] VSCA 288 at [22].

^[11] CV v The Queen [2014] VSCA 58 at [9], citing with approval Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.

^[12] The prosecution also rely on the circumstances surrounding Charge 2 to prove that the injuries the result of Charge 1 were not an accident.

^[13] R v Tektonopoulos [1990] VSCA 93. This is a common law case, although in my view the reasoning remains apt. the danger of impermissible propensity, reasoning where the evidence falls short of coincidence evidence is present both under the common law and in s 98 considerations.

^[14] Tognolini v R [2011] VSCA 394 at [7].

^[15] Dupas v The Queen [2010] HCA 20.

^[16] In the joint custody of Graeme Keen and either Brett Penrose, Renee Jones or both, as Graeme Keen visited Phefley Court on 11 December 2004.