PROPENSITY & SIMILAR FACT EVIDENCE
Rule prosecution may not adduce evidence of the character or misconduct of the accused on other occasions if that evidence shows that the accused has a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it
may cause.
KEY QUESTION Has accused led evidence of “good character”?
If YES prosecution can lead evidence of bad character including any prior convictions!
INTRODUCTION
STATEMENT OF THE RULE
Prosecution may not adduce evidence of the prior misconduct of the accused if that evidence shows only that the accused has a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged (Pfennig), unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause (Makin).
Makin v Attorney-General (NSW) [1894] AC 57
Exclusionary Rule
‘It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried’.
Inclusionary Rule
‘On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused’.
SCOPE OF THE RULE
The Makin rule is a rule of exclusion that is subject to exceptions (Perry v The Queen).
This rule undermines the rule of relevance (because under this rule, relevant evidence is deemed inadmissible).
In essence, the rule excludes prima facie relevant evidence.
“PROPENSITY” vs. “SIMILAR FACT”
“propensity” evidence all evidence which shows that the accused has a tendency to commit crime.
“similar fact” evidence all evidence which shows that, on a previous occasion, the accused has perfomed the same act as that constituting the charged offence.
RELEVANCE
Relevant for Another Purpose
Rule To be admissible, the evidence must be relevant for purpose other than to show mere propensity to commit crime or crime of the type charged.
‘Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more’ (R v Sims).
‘[If] propensity evidence does no more [than show bad disposition] is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect’ (Pfennig).
The common law has always excluded evidence which has no purpose other than to show bad character of the accused (R v Rowston).
‘If there is some other relevant, probative purpose than for the forbidden type of reasoning, the evidence is admitted, but should be made subject to a warning from the judge that the jury must eschew the forbidden reasoning’ (Boardman v DPP).
Case Examples of the Application of this Rule
In Makin it was held evidence of several infants having been previously found dead at premises previously owned by the accused was relevant to prove that the accused had killed a baby that was found in their garden.
In Perry it was held that the previous death of the accused’s second husband from arsenical poisoning was relevant to prove that the accused had killed her third husband by poisoning him with arsenic.
In Pfennig evidence of the later abduction of H was held to be ‘circumstantial evidence pointing to the appellant’s guilt’. The evidence of the later incident involving H ‘demonstrated not only propensity and criminality but also established the appellant’s 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’.
In Noor Mohamed v R the accused was charged with murdering his wife with cyanide. He had access to cyanide and was on bad terms with her. There was no evidence that he had poisoned her. Evidence of the death of his previous wife (who also died of cyanide – and there was evidence suggesting her poisoned her) was excluded because ‘even assuming he had poisoned his former wife, there was no evidence that he had administered poison to the victim’
WHAT IS THE EVIDENCE BEING ADDUCED?
A “not guilty” plea puts all facts in issue.
State the relevant fact.
Q: What is this evidence actually relevant to?
HOW IS THE EVIDENCE RELEVANT TO THE ISSUE?
DISCREDITABLE CONDUCT AS EVIDENCE OF MERE PROPENSITY (s 34P(1))
Section 34P(1) (SA EA) provides that evidence of the accused’s prior discreditable conduct cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct. Such a purpose would constitute an “impermissible use”.
Prima facie inadmissible.
Evidence for the purpose of showing only that D is more likely to have committed the charged offence due to previous discreditable conduct constitutes an impermissible use and is inadmissible (SA EA s 34P(1)).
Includes uncharged acts, propensity or tendency evidence (R v Fischer and Ors).
Rationale this evidence is highly prejudicial.
Before this evidence can be admitted, there must be a permissible use.
CAN THE DISCREDITABLE CONDUCT EVIDENCE BE ADMITTED FOR A “PERMISSIBLE USE” (s 34P(2)) Before evidence of the accused’s prior discreditable conduct can be admitted, there must be a ‘permissible use’ under (SA EA s 34P(2)). A permissible use will exist when the evidence is relevant for another purpose than to show mere propensity.
Res Gestae
Evidence will be permissible if the discreditable conduct forms part of the same transaction as the offence charged so that it would make no sense to try and edit it because it tends to prove why or how the offence was committed (O’Leary v R).
Won’t be Excluded ‘the rule of exclusion has no place in cases where the discreditable conduct was part of the res gestae [because] such evidence which directly relates to a fact in issue is so fundamental
to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect’ (Harriman v R).
Background / Context
Q: Is the evidence of the discreditable conduct necessary as part of the background to the charged offence in order to complete the account of the offence charged to make it comprehensible to the jury?
E.g to explain what would otherwise seem to be surprising conduct.
R v Nieterink concerned evidence that D had committed 10 uncharged sexual misconduct acts that was adduced to show;
o The lead up to the first attack;
o Lack of surprise on behalf of the victim;
o Confidence of D in repeating his conduct;
o Failure of victim to complain to her mother; and o Sexual attraction by D towards victim.
Relationship Between Parties
Q: Did D have a relationship with the victim for which a relevant inference can be drawn because it shows the true nature of their interaction in a manner that bears on a fact in issue?
E.g;
Evidence of a prior criminal relationship and prior drug use may be relevant to rebut ignorance or innocent association, to show motive and drug manufacture (R v Long and McDonnell).
Evidence of a hostile relationship may be relevant to rebut a defence of accident (Wilson v R; R v Gardiner).
Evidence of D’s sexual attraction towards victim (R v Ball).
To Rebut Evidence of Good Character Led by the Accused
Q: Has the accused led good character evidence?
Propensity evidence may be adduced by the prosecution to rebut the evidence of good character (Donnini; Gabriel v R; R v Perrier; UEA s 110(2)(3)).
CTH Once the accused leads evidence of his “good character”, the tendency rule does not apply (UEA s 110(2)(3)).
NB: It can only be used to discredit the witness not for the propensity purpose and the judge must make this clear in the warning!
Other Examples of “Permissible Uses”
R v Y, K Man charged with sexual offences against 2 children. Evidence of his discreditable conduct was led by the prosecution for the purpose of showing he exercised control and dominance over his step children.
R v Jeisman (No 2) Man charged with drug trafficking. Evidence that he had previously associated with drug dealers as well as charged and uncharged drug offences was admissible for the permissible use of showing that the man had possessed methamphetamine previously.
R v Zappavigna Man charged with sexual exploitation of a child. Evidence admitted that the man had previously breached both a Families SA and a Bail order. Held to be a permissible use as it displayed the
‘obsession that the accused had with his children’.
DISCREDITABLE CONDUCT AS EVIDENCE OF A PARTICULAR PROPENSITY (s 34P(2)(a))
NB: Evidence that is inadmissible for one use cannot be used for that use even if it is relevant and admissible for another use (SA EA s 34Q).
The evidence is admissible for a permissible use only if:
Its probative value substantially outweighs any prejudicial effect (SA EA s 34P(2)(a)); and
It has strong probative value having regard to the particular issue or issues arising at trial (SA EA s 34P(2)(b)).
NB: The tests from both Pfennig and Hoch have been abolished under (SA EA s 34S).
DOES THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGH ANY PREJUDICIAL EFFECT?
‘Discreditable conduct which has a permissible use…need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect’ (R v MJJ).
Rule Trial judge may exclude evidence that is otherwise admissible if the reception of the evidence would operate unfairly against an accused (R v Sutton).
Onus is on the prosecution to justify the reception of the evidence.
Common law formulations (i.e. striking similarity) can guide the reasoning process (Phillips v R).
Q: Is the evidence so probative that its admission can be justified notwithstanding its apparent prejudicial effect?
DEGREE OF PROBATIVE FORCE Strong Probative Force
Rule evidence of the bad character or misconduct of the accused will be admitted exceptionally, when it is strongly probative of a matter in issue (Martin v Osborne).
o Must be ‘logically probative of a fact in issue or form part of a chain of facts leading to a fact in issue’.
o In other words, requires more than a 51:49 in favour (must ‘significantly outweigh’).
Is There a ‘Striking Similarity?’
NB: This not an essential element - ‘[S]triking similarity…[is] not essential to the admission of such evidence though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics’
(Pfennig).
Rule ‘[P]ropensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses’ (Pfenning; Markby).
o Must be more than a casual likeness (Straffen).
o It is not enough that it merely raises a suspicion that the accused may have been guilty of the similar misconduct alleged or the crime charged (Perry).
o Examples;
Perry there was a ‘striking similarity’ between evidence that the accused’s previous husband had died of arsenical poisoning when the accused had ample opportunity to poison him as she prepared his meals and also stood to benefit from an insurance policy. This was strikingly similar to the circumstances of the death of the accused’s third husband (Mr Perry).
Sutton v The Queen (1984) 152 CLR 528
Facts
Sutton appealed from a conviction on 8 counts of sexual offences. At trial, Sutton argued that counts 2, 3 and 5 should be severed from the others. At trial it was held the facts constituting each count were so strikingly similar that it should be left to the jury to decide whether Sutton was guilty.
Issue Were the facts of each count so strikingly similar so as to allow for the evidence to be admitted for the jury’s consideration?
Held
Gibbs CJ
The similar facts amongst the counts were as follows – - All victims were teenage girls;
- All victims lived near the location of the offence;
- In all cases the perpetrator exhibited an identical modus operandi;
- All attacks took place close to a set location;
- Each offence was carried out at a school’
- 2 of the attacks involved oral, anal and vaginal intercourse;
- No weapons were used in any attack;
- The perpetrator had a ‘laconic manner of speech’ during each attack;
- After each attack, the victim was left where she lay;
- Consistent interval of 5-6 weeks between attacks;
- Cigarette smoke detected by each victim;
- Description provided by each victim was largely similar.
Held, the cigarette smoke and descriptions were largely unhelpful as it would also serve to identify a wide range of young men.
The age demographic of each victim was largely unimportant as teenage girls are often targeted by sexual offenders.
Held, the method of abduction, method of attack and the fact that each attack took place at a school was strikingly similar.
Coincidence or Improbability Reasoning
The association of the D with so many similar crimes makes it highly improbable that there is an innocent explanation for the D’s involvement, and highly improbable that the allegations are purely coincidental – reasoning guilty from cumulative weight.
Questions to Ask Yourself
How strong is the inference from the evidence to guilt?
Are the similar facts themselves proven?
Uncharged acts carry less probative force than a convicted crime (Perry).
How probative is the other evidence in the case?
Similar fact evidence may more properly be received in cases where the prosecution case is strong without the similar fact evidence.
If prosecution is relying on the similar fact evidence more likely to be excluded.
How unusual is the discreditable conduct?
How certain are the witnesses?
PREJUDICIAL EFFECT
To be admissible, the impermissible and permissible uses must be capable of being kept ‘sufficiently separate and distinct’
from one other ‘so as to remove any appreciable risk of the evidence being used for the impermissible use’ (SA EA s 34P(3)).
NB: Evidence that is inadmissible for one use cannot be used for that use even if it is relevant and admissible for another use (SA EA s 34Q).
The over-strong tendency to believe the defendant is guilty of the offence charged merely because he is a likely person to commit this act (Perry).
The tendency to condemn, not because he is believed guilty of the charged offence but because he has escaped unpunished from previous charges.
Where the truth of the similar fact evidence raises difficult, doubtful questions as to whether the accused is guilty of other criminal acts this may distract the jury’s attention from the vital issues in the case (Perry).
Where the propensity of the accused is established the jury may ‘ignore the possibility that persons of like propensity may have done the act complained of’ (Pfennig).
NB: The potential for prejudice is reduced when the judge sits alone with no jury (R v Gardiner).
HAS NOTICE BEEN PROVIDED TO THE DEFENCE?
Prosecution must provide reasonable notice to the defence that the prosecution intends to adduce evidence of the accused’s discreditable conduct (SA EA s 34P(4)).
The court may dispense with this requirement if it thinks it fit to do so (SA EA s 34P(5)).
MATTERS IRRELEVANT TO ADMISSIBILITY
The rules in Pfennig and Hoch have been overruled by the SA Act.
The Pfennig Rule – a reasonable explanation consistent with the innocence of the accused (SA EA s 34S(a));
The Hoch Rule – the evidence may have been the result of collusion or concoction (SA EA s 34S(b)).
JURY DIRECTIONS
The judge must direct the tribunal of fact that any evidence used in the process of the tribunal of fact’s reasoning leading to a finding of guilt cannot be used, unless, on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt (SA EA s 34R(2); R v Gardiner).
Judge must identify and explain to the tribunal of fact for what purpose the evidence can and cannot be used to ensure it is not prejudicially misused (SA EA s 34R(1); R v Nieterink).
If Adduced to Rebut Good Character judge must specifically warn the jury that the evidence is only to be used for the purpose of discrediting the witness (not for the propensity purpose) (Donnini).
COMMONWEALTH JURISDICTION
THE TENDENCY RULE (UEA s 97)
In essence, the rule provides that ‘evidence of the character, reputation or conduct of a person, or a tendency that a person has or had’ is not admissible unless;
(a) Party seeking to adduce the evidence gave reasonable notice in writing; and
(b) The court thinks that the evidence will (by itself or with the rest of the evidence) have significant probative value.
NB: If prosecution is adducing the evidence, it must substantially outweigh the prejudicial effect (UEA s 101).
Section 101 will only allow for the admission of evidence of the very highest standard (R v Folbigg).
Test for ‘Significant Probative Value’
Test The evidence must be capable of ‘rationally affecting the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance’ (Zaknic Pty Ltd v Svelte Corp Pty Ltd).
Depends upon the nature of the fact in issue and the significance of the evidence in establishing that fact (R v Lockyer).
May be ‘significantly probative’ even if it only comes from a single complainant (JLS v R).
Examples of Evidence NOT Tendered to Establish a Tendency
At the time of the events at a hotel, the accused was a prisoner under a work release which prevented him from attending the hotel. The evidence is adduced to rebut an innocent explanation of his attendance at the hotel, not to prove the accused has a tendency to commit crimes (R v Kovacs).
Evidence going to credibility – not tendency (Leung v R).
Once the accused leads evidence of his “good character”, the tendency rule does not apply (UEA s 110(3)).
Evidence of various defects in a boat tendered to establish a failure to implement safe work procedures (R v Cittadini).
THE COINCIDENCE RULE (UEA s 98)
In essence, the rule provides that ‘evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind’ unless;
(a) Party seeking to adduce the evidence gave reasonable notice in writing; and
(b) The court thinks that the evidence will (by itself or with the rest of the evidence) have significant probative value.
NB: If prosecution is adducing the evidence, it must substantially outweigh the prejudicial effect (UEA s 101).
Section 101 will only allow for the admission of evidence of the very highest standard (R v Folbigg).
IS THE EVIDENCE RELEVANT FOR A NON-TENDENCY / NON-COINCIDENCE PURPOSE?
Court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant (UEA s 137).
Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (UEA s 135);
Be unfairly prejudicial; or
Misleading or confusing; or
Cause or result in undue waste of time.
