LAW3106 Evidence Exam Notes 1. Propensity or Similar Fact Evidence 2. Character Evidence
3. Credibility
4. Identification Evidence 5. Hearsay
6. Opinion Evidence 7. Admissions/Confessions 8. Documentary Evidence 9. Privilege
10. Expert Evidence
1. PROPENSITY/SIMILAR FACT EVIDENCE
Ø propensity = behaviour, similar fact = tendency to act in a certain way on prior occasions Ø Makin v A-G
o exclusionary rule – if tendered only to prove propensity then inadmissible o inclusionary rule – if tendered and relevant to an issue other than propensity
(prove identity, prove knowledge, prove intent) it is admissible
o e.g. x breaks into house, x had burgled 1st house – without more =
propensity; x breaks into house, article is found left by x from 1st house at 2nd house = admissible because 1st house is relevant in a different way Ø R v Straffen - Held: evidence allowed of the statement and passer by identification; Slade
J – allowed because it showed not that A strangled girls, but that for purpose it identified murderer as being same person who murdered the other girls in the same way
Ø R v Ball – P tendered evidence of sexual relations in case of incest, held admissible as it proved not propensity but the actual crime as charged
Ø DPP v Boardman
o if A’s homosexual proclivities take a particular form then evidence admissible even if tends to show A guilty of criminal acts other than those charged
o citing R v Kilbourne [1973] AC 729, 759 – such an underlying unity between the offences as to make coincidence an affront to common sense
Ø Perry v The Queen – sufficiently high probative value to counteract inevitably high prejudicial effect
Ø Hoch v The Queen – 3 boys gave evidence as to sexual offences, high probability of concoction, inadmissible as lacked probative force necessary to overcome high prejudicial effect
Ø Pfenning v The Queen – it was objectively improbable on the whole of the circumstantial evidence including the propensity evidence, that anyone other than the appellant could have abducted MB. That is, there was no reasonable inference consistent with innocence – affront to common sense
o Held: evidence admissible as it establishes modus operandi in abducting a young boy for sexual purposes and his acknowledgement that he was thinking about indulging his propensity by recourse to the same modus operandi
Ø Gipp v The Queen - general evidence of prior abuse does not have a special probative value which renders evidence admissible
Ø HML v The Queen - past sexual conduct, uncharged, in parent and child case could be admissible as providing a motive for the offence charged
Ø BBH v The Queen - evidence of sexual interest in daughter when coupled with other P evidence strong enough to negative any reasonable doubt and admissible
Ø Evidence Act 1906 s 31A - specifically prohibits the taking into account of concoction, collusion or suggestion when considering probative value of evidence
Ø Asplin v WA
o A convicted for indecently assaulting 6 yo girl evidence in question was that A had told Dr Basson (psychologist) that he had been arrested for the same and had strong sexual fantasies about young girls
o s 31A does not allow discretion to exclude legally admissible evidence o 1. s 31A(1) evidence must be propensity or relationship or both
§ embraces not only similar fact, but also evidence of character or reputation o 2. s 31A(2)(a) significant probative value – first must be relevant and second must
be important or of consequence – dependant on facts of case
o 3. s 31A(2)(b) probative value must be such that when compared to degree of risk of an unfair trial, fair minded people would think public interest in adducing all relevant evidence of guilt must have priority over risk of an unfair trial.
o Held: fair minded person would think public interest had priority over risk of unfair trial
Ø Mood Music Publishing Co Ltd v De Wolfe Ltd – in civil cases court will admit evidence of similar facts if it is logically probative, logically relevant in determining the matter in issue
Ø Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd – evidence of witnesses otherwise logically probative of a fact in issue is not rendered inadmissible by reason of oppression and unfairness
2. CHARACTER EVIDENCE
Ø Disposition: Character, or a propensity to behave in a certain way or with a specified state of mind.
Ø May be presented in 4 ways:
o Prior criminal convictions might be adduced as tending to establish a disposition of a certain sort
o Previous conduct other than the commission of criminal offences might also establish a particular disposition
o A witness with personal knowledge of the person whose disposition is under investigation might be asked for an estimation of that person’s disposition o Evidence might be given of that person’s reputation, that is the disposition the
person is generally believed to possess by those who know her or him – this is known as “character evidence”