5194LAW Study Guide - Final Guide: Exclusionary Rule, Closed List, Logical Reasoning
20 Jun 2018
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AIMS AND OBJECTIVES
By the end of this week students should be able to:
Identify propensity, tendency, or similar fact evidence.
Understand why courts exercise caution with propensity and similar fact evidence in
criminal cases.
Be able to decide whether to admit or exclude such evidence.
Be able to identify and apply relevant statutory provisions.
Understand the different rules that apply in civil cases.
READINGS
Required reading:
Field, Chapter 7
EAQ, ss 15, 132A, 132B
Criminal Code (Qld), ss 567, 597A
Pfennig v. R. (1994) 182 CLR 461
Phillips v. R (2006) 225 CLR 303
BBH v R [2012] HCA 9
Case Extracts SFE and Propensity [linked on 5194LAW Learning@Griffith site]
Recommended reading:
Hoch v. R. (1988) 165 CLR 292
HML v R [2008] HCA 16
It is a fundamental common law principle that an accused person should be convicted only upon
evidence relating to the crime charged and not upon evidence of what she might have done on
other occasions or upon evidence of her reputation or general propensity or tendency towards
criminal behaviour. It is generally improper to reason that because of a person's propensity or
tendency to crime it is likely they committed the crime in question. To this end, as a general
principle, evidence revealing such propensity or tendency is generally inadmissible at an
accused's trial.
Of course, there are some occasions where the evidence of past misconduct is so powerfully
relevant that it should be admitted. For example, where a rapist has a distinctive idiosyncratic fetish
that he displays during the course of rapes, that might be such a compelling indicator of identity
that it would be an affront to common sense not to allow the jury to hear it. Similarly, the evidence
of previous misconduct might be relevant on the issues of whether the conduct in question was
deliberate or accidental, or is capable of rebutting a defence.
The basis for the exclusionary principle lies in the strictness of the criminal standard of proof
coupled with the potentially prejudicial nature of p rior misconduct evidence. There is no
doubt that prior misconduct evidence is in many cases relevant – indeed the first line of enquiry
for the investigating police officer is to consult criminal records – but its relevance at trial is
subject to close scrutiny in light of the high standard of criminal proof, and the common law is
concerned that juries might place too much weight upon it and convict where more specific
evidence relating to the case is less than conclusive. Later, we will look more closely into
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evidence of character. Note the fine line that sometimes exists between evidence of past acts
(SFE) and evidence of character.
Similar fact evidence is a species of circumstantial evidence. Its relevance may arise in a
number of ways. In cases in which identity is in issue, the evidence may be admissible
notwithstanding its prejudicial effect if:
a person is more likely to have engaged in conduct relevant to the case because they
have engaged in similar conduct at other times in the past;
a coincidence would be improbable as the true and innocent explanation for the person’s
involvement in multiple events of the type being litigated (negating a defence of accident
or coincidence); or
it would be unlikely that another person is responsible for the conduct being
litigated because the factual context is strikingly similar to conduct engaged in by this
person in the past (thus used to establish the identity of someone responsible for certain
conduct).
(The above propositions are not intended to be strict expressions of the tests found in the
authorities.)
Evidence of other misconduct may range from evidence of previous convictions or specific
previous crimes or acts of misconduct to evidence of an accused's reputation for criminal and
other misconduct, to statements made by an accused person revealing a discreditable
predisposition.
You will appreciate that, with regard to circumstantial evidence, questions of weight can arise in
two ways. Suppose a car similar to one owned by an accused is seen speeding from the scene of
a crime, and the issue is the identity of the offender. One way in which questions of weight can
arise is, how compellingly can the inference of identity be drawn from the facts described,
assuming they are accepted? For example, if the car in question is a white Holden, such a vehicle
is so common that the evidence might contribute, by itself, little on the question of identification. In
that sense the evidence might have little weight, compared to a case where the vehicle in
question was both rare and distinctive.
However a conceptually separate question on the topic of weight is whether the witness testifying
to seeing the car is to be believed. Even if the case is one involving a rare and distinctive car, but
if the witness is lying about seeing it, the evidence is, in a different sense from that described
above, of no weight.
Generally, it is not the role of a trial judge to pre-assess evidence to see if it is true before it is
admitted – acceptance or otherwise of the truth of testimony is the role of the jury (see Doney
(1990) 171 CLR 207). As we go through the cases, you might ask whether this distinction in the
different senses in which the concept of weight is uses have been observed.
Evidence of past misbehavior may be relevant to material facts either as a result of a process of
reasoning drawing inferences from the propensity or tendency revealed (relevance via
propensity) or as a result of a process of reasoning which does not draw inferences from that
revealed propensity or tendency (relevance other than via propensity).
It is the problematic relevance via propensity reasoning that gives rise to the exclusionary
principle. For example, if, to support evidence of the identification of an alleged rapist by the
complainant, evidence is tendered to show that on previous occasions the accused raped other
women, the only relevance of the evidence appears to be via a propensity process of reasoning
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- the accused has committed prior rapes and therefore the complainant is likely to be correct in
identifying him as her attacker on the occasion in question. Suspicious of the probative weight of
such evidence, the exclusionary principle, as a general rule, excludes propensity evidence.
On the other hand, if to support the complainant’s testimony identifying the accused, evidence
is tendered to show that the accused was in the vicinity because, shortly before the rape, he
escaped from a nearby prison where he was serving time for a previous rape, although
revealing the commission of prior rape, the evidence has a relevance which arises
independently of the propensity revealed. It is independently relevant to put the accused in the
vicinity. The exclusionary principle does not apply to this independent relevance and so, on the
face of it, the evidence is admissible for this purpose. But the problem is that the risk of
inappropriate propensity reasoning also arises and a jury may be improperly influenced by
it. Thus again as a general rule the exclusionary principle might be invoked to exclude the
evidence. Of course the way of reducing the risk of improper jury influence in this case is to
edit the evidence so it is not revealed why the accused was being held in prison, or if possible,
why the accused was in the vicinity at all. If editing is impractical the risk of prejudice may be
held to be adequately reduced by an appropriate direction to the jury.
In Pfennig v. R (1995) 182 CLR 461, McHugh J. noted, at 512, that similar fact evidence
is prejudicial because it “undermines the presumption of innocence”, “creates undue suspicion”,
“causes bias against the accused”, and:
tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are
constant and that past behaviour is an accurate guide to contemporary conduct.
Also in Pfennig, Mason CJ, Deane J. and Dawson J. noted, at 487-488:
Because propensity evidence may well have a prejudicial effect which is disproportionate to
the probative force of that evidence, it is necessary to maintain an insistence on that
evidence having a high level or degree of cogency in the circumstances of the particular
case. In this context, the reference to prejudicial effect is a reference to the undue impact,
adverse to an accused, that the evidence may have on the mind of the jury over and above
the impact that it might be expected to have if consideration were confined to its
probative force.
Propensity evidence (including evidence of bad disposition and prior criminality) has always
been treated as evidence which has or is likely to have a prejudicial effect in the sense
explained. That is because the ordinary person naturally (a) thinks that a person who has
an established propensity whenever opportunity arises has therefore yielded to the
propensity in the circumstances of the particular case and (b) may ignore the possibility
that persons of like propensity may have done the act complained of. Hence, the necessity
to find something in the evidence or in its connection with the events giving rise to the
offences charged which endows it with a high level or degree of cogency.
A note about terminology
Throughout the cases, different language is sometimes used for essentially the same concept.
Thus, in this context, evidence is sometimes called “similar fact” evidence, or “tendency” evidence
or “propensity” evidence or evidence of “prior discreditable conduct”. Whatever it is called, Pfennig
makes it clear that the basis of its admissibility always involves a species of propensity reasoning.
The question is whether the propensity reasoning available on the facts is legitimized by being so
strongly probative (by whatever test is ultimately applied) that it is appropriate to admit it. Thus,
there is generally no magic in the language chosen – “tendency” evidence, for example, is not
distinguished in the relevant cases or treated differently from evidence of “propensity” or other like
descriptors merely on the basis of the label attached.
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Document Summary
By the end of this week students should be able to: Understand why courts exercise caution with propensity and similar fact evidence in criminal cases. Be able to decide whether to admit or exclude such evidence. Be able to identify and apply relevant statutory provisions. Understand the different rules that apply in civil cases. Pfennig v. r. (1994) 182 clr 461. Phillips v. r (2006) 225 clr 303. Case extracts sfe and propensity [linked on 5194law learning@griffith site] Hoch v. r. (1988) 165 clr 292. It is generally improper to reason that because of a person"s propensity or tendency to crime it is likely they committed the crime in question. To this end, as a general principle, evidence revealing such propensity or tendency is generally inadmissible at an accused"s trial. Of course, there are some occasions where the evidence of past misconduct is so powerfully relevant that it should be admitted.
