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7. Circumstantial Evidence

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Circumstantial Evidence = Evidence of a basic fact from which the court may infer the existence of a fact in issue Shepherd per Dawson J; Lee (armed robbery—eye witness=accomplice  ct distrustful of witness, CE also desirable ← eg evidence of gambling debts etc) Admissibility (no special rule—relevance) Circumstantial evidence only admissible if renders probable or improbable the existence of a main fact in issue: Wilson v R (murder of wife—claimed that gun accidentally discharged while riding on tractor—comments out of court to husband “I know you want to kill me for my money”  circumstantial evidence admissible to show nature of relationship || NOT for truth of content—showing guilt—hearsay) Circumstantial evidence admissible if, eg— o Explains an occurrence o Assists choice between two explanations of occurrence Weight The weight of admissible evidence lies in its cumulative effect (=the more CE, the stronger the case): Long (arson—admissible CE: knowledge of bldg interior | grudge against owner | threats to kill | seen outside trying to enter | seen in common room near where fire started | expert evidence that many small fires lit = intentional arson || not admissible—evidence of past arson | questioned about fire in caravan & car | criminal history | never charged with arson)  Some cases can be made up entirely on CE: Chamberlain, OJ Simpson trial TYPES OF C IRCUMSTANTIAL EVIDENCE  Motive  Opportunity  Habit  Conduct revealing consciousness of guilt (Flight | Lies | Demeanour)  Similar Fact Evidence  Bad Character  Previous Convictions Motive: Plomp v R Evidence as to motive relevant to allow inference that the accused did the crime: Plomp  Where would put coincidence beyond the reasonable human experience: Plomp (Murder of wife in surf—CE: no danger in surf; wife good swimmer, familiar with conditions; husband had promised to marry another woman, introduced to chn as new mother | body had abrasion on forehead, could have been from sand  could infer intent—would put high strain on normal experience if just coincidence → admissible)  For example conduct indicating prediction of death: Lang (woman buying funeral dress before deceased  CE admissible); Plomp (presenting to chn as new mother)  Evidence as to nature of relationships admissible if o establish motive o explain occurrence o assist choice between two explanations Wilson v R (murder of wife—claimed that gun accidentally discharged while riding on tractor— evidence of arguments | CE: comments out of court to husband “I know you want to kill me for my money”  circumstantial evidence admissible to show nature of relationship ↔ NOT for truth of content—showing guilt—hearsay) Direction Inference of guilt from motive should not only be rational, but only rational inference in the circumstances Andrew Trotter LWB432 Evidence Opportunity/knowledge Either—  Accused in the vicinity of the crime | had access to location etc: eg Lee (CE that accused was near the bank close to the time of the robbery)  Victim last seen / evidence that was in the area where crime committed Lack of Opportunity—Alibi  = person can rely on lack of opportunity  accused must give notice to the Crown if intending to rely upon such an alibi s590A(1) Criminal Code Habit = routinely adopts a mode of conduct—and that on the facts they also adopted that mode  High threshold—must be more than merely evidence of isolated facts: Eichsteadt v Lahrs (PI claim bicycle hit by car—Plaintiff couldn‟t remember because of injury—CE: that habitually dismounted & walked across = to show that not at fault  jury could infer plaintiff had dismounted)  Clothing or jewellery always worn: Weissensteiner Conduct revealing a consciousness of guilt [→ as per informal admissions] Flight: Melrose  Evidence of guilt in both civil and criminal cases: Melrose (rape—left country for Holland for 10 years—on return said left because charged with offence  admissible) o Not conclusive—accused can bring evidence to justify (eg mother was dying)  TJ must first be satisfied that it reveals consciousness of guilt—whether there is an explanation for the flight (determined at voir dire): Melrose (rape—left country for Holland for 10 years  first had to establish that no other explanation—that demonstrated consciousness of guilt)  Can be hiding as well as running: R v Black (2009) (concealing identity | shutting blinds | hiding under a bed) Lies and inconsistent explanations: Edwards Evidence of lies = consciousness of guilt if— 1. Deliberate—not possible that accused was merely mistaken or confused 2. Relate to material issue—must go beyond credibility (eg colour of someone‟s socks—only to credibility || someone‟s whereabouts—main facts in issue) 3. Springs from realisation or consciousness of guilt ← Motive for lie to escape the consequences of the truth  Lie may be in or out of court Edwards (offence in back of police van—first said didn‟t see anything—later admitted that saw events  not possible that mistaken + related to material issue (assault) + motive) Selective answering and contrary demeanour: Woon  Blatant disregard to the judicial process may be used to reveal consciousness of guilt in severe cases: Woon (armed robbery—selectively answered police questions  manner of answering indicated had a level of knowledge that meant he must have been involved → consciousness of guilt) o = Demeanour of defendant can be evidence of consciousness of guilt: Woon (not selective answering per se)  Later cases have interpreted Woon to mean that selective answering of police questions can amount to consciousness of guilt: eg Smith v R (not mentioned) Andrew Trotter LWB432 Evidence Similar Fact Evidence: cite Pfennig | Phillips → Makin (UK) | O’Keefe = evidence of similar conduct on different occasions (eg criminal record) General Rule Not admissible because of the severe prejudicial effect (jury will abuse the fact that the person has committed an offence on another occasion) Exceptions Admissible where relevant to an issue—  Striking similarity of the behaviour in the past & behaviour under investigation in the trial: Straffen (SFE: in jail for strangling girls & leaving naked in public—escaped from jail—naked girl found strangled in park  previous acts so strikingly similar → admissible)  Rebut defences & excuses (eg accident): Smith (murder—drowning wife in bath—SFE: previous 2 wives also drowned in bath  admissible to rebut accident); Makin v AG (UK) (baby farming—adopted child for money | later found buried in backyard—claimed died of natural causes | burying just a panicked reaction—SFE: 12 other babies they‟d buried in backyards  admissible to allow jury to reject excuse of accident) Test Admissible if the similar fact evidence bears no rational or reasonable explanation consistent with the innocence of the accused: Pfennig (murder of 10yo boy—kidnapped near aquatic reserve in combi | accidental drowning highly unlikely—SFE: 1yr later kidnapped another child | left bike near cliff to suggest accident | raped child | convicted  admissible ← hypothesis that child drowned rejected)  Not strictly necessary—striking similarities, unusual feature or an underlying unity: Pfennig (although may assist in satisfying the test) o BUT if similarities go beyond merely not being striking—and are „entirely unremarkable and common‟ → not admissible: Phillips v The Queen  Admissible— o must have a specific connexion with the commission of the offence charged: Phillips v The Queen (confirming Pfenning) (rape & sexual assault of 6 teenagers—SFE: advances to other girls  evidence that keen to have sex not very probative → conviction quashed)  similarities were „entirely unremarkable and common‟ o Admissible if probative force clearly transcends its prejudicial effect: Perry (before Pfenning) (Poisoning husband with cyanide—SFE: evidence of previous poisoning  probative value > prejudicial effect → admissible); s132A QEA  Exclude where— o there is a reasonable hypothesis which is consistent with innocence: Phillips v The Queen (2006) (rape & sexual assault of 6 teenagers—question of consent for some | whether happened for others—SFE: how he went about being alone with the girls | whether other girls consented to his advances  mental state of one girl sheds no light on mental state of other girls—evidence that keen to have sex not very probative → not admissible → conviction quashed) o similarities are „entirely unremarkable and common‟ → not admissible: Phillips v The Queen (2006) (more than just „not striking‟) o goes towards state of mind of the wrong party: Phillips v The Queen (2006) (previous sexual acts only evidence of state of mind of accused—relevant state of mind for rape is that of the victim re consent  not admissible)  Don‟t exclude merely because— o Similarities are not striking similarities, unusual feature or
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