LWB 432
SARAH FYNES-CLINTON
TOPIC 11 – CIRCUMSTANTIAL & CHARACTER EVIDENCE
CIRCUMSTANTIAL EVIDENCE
WHAT IS CIRCUMSTANTIAL EVIDENCE?
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Circumstantial evidence is evidence of a basic fact from which the court may infer the existence of a fact
in issue.
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It may be contrasted with direct evidence of a person who witnessed the event in issue.
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This type of evidence uses one fact to prove the existence of another fact, where:
(1)
the second fact is a fact in issue or
(2)
the second fact is a fact relevant to proving a fact in issue.
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The court is being asked to infer that if the first fact occurred or existed, then so too did the second fact.
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This can be so if the two facts are normally so closely associated that human experience tells us the
second fact must be so if the first fact can be shown to exist.
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Some examples of circumstantial evidence pointing to guilt in a criminal trial are motive, opportunity, habit
and conduct.
Character and “similar fact” evidence are also treated as circumstantial evidence.
Use of circumstantial evidence is certainly not limited to criminal trials however; it can be used in civil cases
whenever available and relevant.
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Hypothetical example
 Thomson is charged with armed robbery of Westpac Bank at St Lucia.
 The Crown case against Thomson consists of:
1. testimony of Banker who is able to identify T as the offender.
2. testimony of Walker who saw T outside the bank looking suspicious 5min before the robbery.
3. testimony of Mrs T who says that her husband was heavily in debt as a result of gambling.
 The testimony of Banker is not circumstantial, it is direct evidence. B was in the bank. He saw the offence take
place and T commit it- it is eyewitness testimony.
 On the other hand, Walker did not see the offence take place, neither did he see T commit it.
 Mrs T did not see the offence or see her husband commit it.
 But we can infer from both Mr Walker and Mrs T knows, that there is a greater likelihood that indeed it was T
that committed the offence. It makes it more probable that T did it.
 Therefore what Walker and Mrs T know is indirect or circumstantial evidence.
 It is evidence of facts from which we can infer the existence of a fact in issue: that is that it was T who
performed the robbery.
INFERENCE
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The court is being asked to infer that if the 1st fact (evidentiary fact) occurred or existed, then so too did the
2nd fact (intermediate fact).
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Before you can rely on an inference drawn from a circumstantial fact, you must prove that fact and must
prove it by admissible evidence – can’t speculate that circumstantial facts existed.
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SARAH FYNES-CLINTON
Circumstantial evidence must NOT infringe any exclusionary rules and is subject to judicial discretion
to exclude.
The evidence should render the main fact in issue more or less probable.
Examples:
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Motive: Plomp v The Queen;
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Opportunity: s 590A Criminal Code;
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Habit: Eichsteadt v Lahrs;
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only in civil cases, and difficult to establish;
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if a person always acts in a particular way, it can be used to prove that they acted that way in a
specific instance.
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Conduct revealing consciousness of guilt: eg lies, flight;
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Character; and
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“Similar fact”/propensity evidence.
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Criminal equivalent for habit.
Examples of categories are not exclusive.
CIRCUMSTANTIAL EVIDENCE MUST BE RELEVANT
GENERAL PRINCIPLE:
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Admissibility is based on relevance:
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nb –may be admissible as circumstantial evidence even if not admissible for another purpose.
Wilson v The Queen
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The husband charged with murdering wife but claimed that the gun went off accidentally when dog knocked it over.
Evidence of statements by wife, overheard by neighbours, that husband wanted to kill her for money etc.
Defence attempted to exclude because it was hearsay.
Crown argued that conversation was relevant for another, admissible purpose – evidence of the state of the relationship from which it
could be inferred that the shooting was not an accident – ie circumstantial evidence.
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Circumstantial evidence is only relevant when inferences can be drawn from it.
The weight of circumstantial evidence lies in its cumulative effect.
A case may be made up of entirely circumstantial evidence: OJ Simpson; Chamberlain; Long.
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Therefore: A plaintiff may succeed or the accused may be convicted on a case made entirely of
circumstantial evidence: Chamberlain
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Use of circumstantial evidence is certainly not limited to criminal trials and has a place in civil trial to the
same level.
GENERAL RULES FOR CIRCUMSTANTIAL EVIDENCE
THE PEACOCK DIRECTION – BURDEN OF PROOF
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In a criminal trial, the judge must give the jury a general direction that they are satisfied beyond a
reasonable doubt that the accused is guilty.
Peacock Direction: (a rule of practice)
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Judge must direct the jury that they cannot convict unless the circumstances are such as to be
inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock

Guilt should be the only rational inference that could be drawn from the circumstances (Dawson
J, in Shepherd @ 133)
Based on the rule that the Crown must prove its case beyond a reasonable doubt.
If a judge fails to give this direction, it is not necessary grounds for an appeal.
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SARAH FYNES-CLINTON
THE SHEPHERD DIRECTION - STANDARD OF PROOF
Chamberlain
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‘Dingo took my baby’ case.
No motive, weapon, witnesses etc.
Suggested that each circumstantial fact relied upon by the jury must be proved beyond a reasonable doubt.
Suggested that the jury must be so directed in every case.
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Case criticised as being incorrect in law and confusing for juries.
SHEPHERD DIRECTION:
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If your circumstantial evidence comprises in itself all that is being presented to prove a main fact in
issue, then it needs to be proved to the satisfaction of the jury beyond reasonable doubt and the jury
should be so directed in every case.
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Primary/evidentiary facts:
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ie, those from which inferences are to be drawn;
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only need to be proved on the balance of probabilities.
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Intermediate facts:
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must be proved beyond a reasonable doubt;
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eg elements of offence, identity.
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Ultimate fact:
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guilt;
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must be proved beyond a reasonable doubt.
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Direction re: intermediate fact only given where a conclusion on the fact is indispensable link in a chain
of reasoning:
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Strands in a rope vs links in a chain analogy;
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Direction not always helpful/necessary.
Jones
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The simple TEST is essentially two types of evidence:
(1)
Links in a chain.
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Nature of chains is that one link fails the chains falls apart, unable to conclude that a main fact
in issue exists.
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Links are evidence which are indispensable to the crown case - that piece of circumstantial
evidence must be proved beyond reasonable doubt before a jury can use it.
(2)
Strands of rope.

On the other hand the lesser facts are like strands in a rope, many strands go to make up a rope,
and the failure of one of them will not necessarily break the rope – therefore only needs to be
proved on the balance of probabilities.
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If one link in the Crowns case folds, then the whole integrity of the Crown case is gone as they are unable to
prove one of the main facts in issue that they must prove.
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That’s how you will know if the beyond reasonable doubt test applies.
On the other hand, circumstantial evidence may be presented to prove something at the lower level- it may
be presented to prove a collateral fact or one that has a status less than being a main fact in issue.

In that event the beyond reasonable doubt standard does not apply and the jury need only be satisfied
of the circumstantial fact on balance of probability before they are entitled to take account of it in
proof of the entire case.
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SARAH FYNES-CLINTON
Jones
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J was convicted of burglary, armed robbery and rape.
All elements of rape could be established beyond reasonable doubt.
The only real issue was identity – Jones claimed it wasn’t him.
Jones was identified by a cab driver near the complainant’s house.
The complainant had given a description of the attacker to the police that matched Jones.
When questioned by police, he lied as to where he had been, gave a false address and fled Brisbane.
There was DNA evidence which linked Jones to the rape.
The defence counsel argued that the DNA evidence (by itself) needed to be proved beyond a reasonable doubt.
Issue was identity (intermediate fact).
All the other evidence that pointed to identity:
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cab driver’s id.
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victim’s id.
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police picked him up in the vicinity of the rape – opportunity.
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lying and fleeing.
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DNA evidence.
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all of these are primary facts.
HELD:
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Looking at strands here in the rope.
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Ie could the jury pick up one of the strands here (fleeing) – if the DNA evidence failed, there is plenty of other strands of evidence from
which to infer that Jones was guilty.
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Evidentiary facts do not have to be proved beyond reasonable doubt and it is appropriate to give warning where looking at the strands in
the rope.
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Therefore all of the strands need only be proved on the balance of probabilities, whereas the jury must be satisfied as to the identity
beyond a reasonable doubt.
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In Jones, the analogy that is drawn for that type of situation is that the circumstantial facts constitute the
strands of a rope.
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In the sense that where one strand fails, the integrity of the whole rope is not compromised: the other
strands can still bear the weight.
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This is the rule of thumb that you apply when you are dealing with the balance of probabilities
requirement.
JUDICIAL DIRECTION
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Only where Crown case is ENTIRELY circumstantial.
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Criminal Cases:
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The Judge must direct the jury that they cannot convict unless the circumstances are such as to be
inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock.
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I.E. Guilty verdict is to be entered ONLY if there is no reasonable hypothesis consistent with innocence.
MOTIVE
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Whilst seldom relevant in civil cases, the existence of a motive is almost ALWAYS RELEVANT in a
CRIMINAL TRIAL.
Wilson
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Held:
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W charged with murdering his wife – shot in the back of the head with a shotgun
Crown says deliberate
W says it was an accident.
W claimed wife was driving along in a tractor towing a trailer carrying bails of hay.
On the hay was a gun. According to A the dog jumped on to the gun and made it go off and it hit wife in the head and she died.
Crown called evidence of some neighbours who had heard the pair arguing.
It is permissible for the neighbours to tell the court, not only of the quarrels but what was said.
During one quarrel, the wife said ‘I know you want to kill me so why not just do it’. Q? Hearsay?
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SARAH FYNES-CLINTON
No this was original evidence because it was not being offered to prove the truth of the statement or assertion, ie that H did want to kill W,
it is offered circumstantially for the mere fact that it is spoken.
The statement was admitted to prove the state of the relationship, that is, that it was not as loving and caring a relationship as the
defence wanted to show but an acrimonious one.
Certainly the statement was prejudicial to A and the court took that into account but said that this was outweighed by the probative value
of the evidence.
This was circumstantial evidence of motive but that it was not necessary to pigeonhole evidence.
It is admissible wherever it is relevant to a fact in issue that is relevant.
Per Barwick:
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Reminds us that whilst popular to pigeonhole circumstantial evidence it doesn’t serve to provide an exhaustive list.
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Relevant
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Served to rebut defence of accident raised by the accused.
Plomp
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Held:
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Accused of murder of his wife.
They had gone for a swim and he claimed that she (a strong swimmer) had been caught in a rip and that he had failed to save her.
It was light surf in the early evening but no one else saw it happen.
The Crown adduced evidence of motive to show that her death was deliberate.
The accused was having an affair and had told the girlfriend that he was a widower before his wife was actually dead.
He was in the process of planning the wedding to the other woman.
Admissible because it went to motive and he was found guilty.
Sufficient circumstantial evidence to convict
No jury is ever going to convict if they only have a motive. Motive has to be taken in the context of the other circumstantial evidence.
Taken as a package here, the jury agreed with the Crown.
There was no reasonable hypothesis consistent with the accused innocence.
OPPORTUNITY
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In both civil and criminal cases - where a person denies that it was they who committed the act in question it
will be relevant to show that they had an opportunity to do so; Perry v The Queen.
Long is an example of this. Nobody saw Long light the fire, but he was seen in a place that gave him an
opportunity to do so.
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Puts person into a smaller subset of people able to do the act.
ALIBI:
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In the converse, if a person can show that he or she could not have committed the act because they were
somewhere else at the relevant time this will be a good defence - an alibi.
Criminal Code s 590A:
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as to alibi evidence and the notice requirement.
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Alibi: circumstantial evidence that the accused couldn’t perform the crime. Can set up evidence by
self or through the evidence of others.
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NOTICE: within 14 days of trial on indictable offence the accused must deliver notice of the alibi to the
R. This must include an explanation of the alibi and witnesses who will testify in its support. If not
served the accused can’t rely on this at trial unless the judge gives leave
Justices Act s 104(5):
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requires an accused to be informed of these requirements at committal, failure to inform means the
accused is not subject to the notice requirement.
HABIT
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If a person habitually acts in a certain way, this will be relevant to the way in which he or she might have
acted on a particular occasion.
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SARAH FYNES-CLINTON
Elements:
(1)
Sufficient previous instances of similar conduct to render it habit, not just coincidence to establish
systematic conduct
(2)
Underlying unity and place – occurred under similar circumstances so as to naturally accountable by
system rather than a causal recurrence
Eichsteadt v Lahrs
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Crash between a motor vehicle and a push bike at an intersection.
Motorist didn’t see cyclist prior to impact.
Rider had head injuries and could not remember what he did leading up to the accident.
Cyclist alleged the motorist was negligent
The motorist claimed that the cyclist was guilty of contributory negligence.
The difficulty for the cyclist was that this intersection was at the bottom of a hill from his house and the bike had no brakes, hence he
could have sped down the hill unable to stop.
BUT the rider called witnesses who said they had never seen him ride past the intersection but that he had always walked the bike down
the hill and over the intersection.
The measure of contributory negligence depended on whether the cyclist walked the bike across the intersection.
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Held:
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To show habit must show:
(1)
Uniformity of Place:
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Not accept evidence if it suggested that the cyclist always wheeled the bike across other intersections; or
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Always walked bike down other hills.
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MUST be the same intersection where the incident occurred.
(2)
Must be sufficient previous instances of similar conduct to render it a habit and not just a coincidence – difficult test to apply.
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Habit established
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Cyclist liable for less contribution.
Manenti v Melbourne Tramways
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Boy jumped onto a moving tram, fell off and died.
MT tried to establish habit of jumping onto moving trams.
Court said that just because he had done this before did not make it circumstantial evidence that he did it on this occasion.
CONDUCT
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The conduct of a person may be looked at to see whether eg. he or she has “revealed a consciousness of
guilt”: Edwards
Edwards
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Held:
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Sample of blood sent to London for analysis
E attempted to bribe the postman for the results of the test to be sent to him.
When he failed he decided to put rocks on the road and try to overturn the truck.
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This type of evidence is circumstantial
This is conduct from which an inference may be drawn and is circumstantial and worthy of inclusion in the
list.
This circumstantial evidence was admitted against him.
This type of evidence is circumstantial.
Reveals a consciousness of guilt
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SARAH FYNES-CLINTON
CHARACTER EVIDENCE
GENERAL
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Witnesses, including a party in a civil case:
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QEA ss 15A, 53, and 54;
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CEA ss 102, 103, and 106.
Crime Victims:
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Criminal Law (Sexual Offences) Act 1978
Accused:
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Common Law;
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Statute.
CHARACTER OF THE ACCUSED
COMMON LAW
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The character of the accused, a party or a witness may be relevant to either their credibility as a witness
or to the issues.
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Relevant to determine whether the person had the character to commit the crime.
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The common law has always excluded evidence led by the prosecution toward an accused which has no
purpose other than to show bad character on the part of the accused; R v Rowton.
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It has long been settled at COMMON LAW that:
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(3)
The accused may raise “character” by
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calling witnesses to speak of his or her good character,
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giving such evidence themselves; OR
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cross-examining the witnesses for the prosecution with a view to inducing them to do so.
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Character is not raised by attacking the credit of Crown witnesses.
(4)
Witnesses to character can NOT speak of specific acts of the accused - only his or her general
reputation; R v Rowton.
(5)
The prosecution can ONLY give direct evidence of the accused's character (other than as similar
fact evidence) or cross-examine on the accused’s character IF the accused has raised the matter.
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If the accused attacks a prosecution witness's character he does not raise his or her own, he or
she raises that of the prosecution witness only; Rowton.
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Note if good character evidence is led as part of the defence case, the Crown will require the
Court’s leave to adduce evidence in rebuttal; Rowton
Evidence of good character of the accused goes to the fact in issue of guilt – may be taken into account by
judge/jury.
Evidence of bad character only goes to negativing the good character evidence, not to prove guilt.
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eg: Crown cannot lead evidence that the accused is violent or lights fires etc.
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Rule developed on the basis that knowledge (of bad character) is so prejudicial to the accused in the
sense that he may be tried on his past misdeeds rather than the merits of the case, and therefore is
inadmissible.
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The rule is a protection for the accused in terms of a fair trial
Once good character evidence has been adduced, the Crown can rebut reputation and use specific instances
to show that the good character evidence ought not be accepted.
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Crown can seek leave to reopen case and adduce evidence of bad character of the accused.
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SARAH FYNES-CLINTON
Speak of any evidence which they know. (ie accused stole from petty cash jar)
Limited to effect of rebuttal – negative benefit gained by the accused, ie. can’t be used to give an
advantage to the Crown.
STATUTE
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s 15(1) – there is no privilege against self incrimination.
s 15(2) – Prohibition against questions from which will become evidence that the person is someone of
bad character or has previous convictions.
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subject to 4 exceptions.
Confirms and extends the common law rules.
It applies only where the accused is giving evidence and allows character evidence.
15 Questioning a person charged in a criminal proceeding
(1)
Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or
produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with
which the person is there charged.
(2)
Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required
to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence
other than that with which the person is there charged, or is of bad character, unless-(a)
the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of
the offence with which the person is there charged;
(b)
the question is directed to showing a matter of which the proof is admissible evidence to show that any other person
charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;
(c)
the person has personally or by counsel asked questions of any witness with a view to establishing the person's own good
character, or has given evidence of the person's good character, or the nature or conduct of the defence is such as to
involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged
in that criminal proceeding;
(d)
the person has given evidence against any other person charged in that criminal proceeding.
(3)
(4)
A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court's permission.
If the proceeding is a trial by jury, an application for the court's permission under subsection (3) must be made in the absence of
the jury.
Exceptions
1.
s 15(2)(a): questions that are designed to show that the accused is guilty. Guilty by reason of their
previous convictions.
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Severe limits on when proof of previous convictions is permitted: it is the topic of similar fact evidence.
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Provision says if it is legitimate for the Crown to adduce similar fact evidence against the accused and if
that accused chooses to testify, then it is also legitimate for the Crown to cross examine that accused
about that similar fact evidence.
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These types of questions are admissible to show guilt at common law eg similar fact evidence, other
relevant propensity evidence or res gestae.
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eg O’Leary – bad character evidence admitted as part of the res gestae
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Requires leave of the court.
2.
s 15(2)(b): allows questions tending to prove a co-accused is not guilty.
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Counsel for that co-accused is permitted to ask questions notwithstanding that they dwell on bad
character and previous convictions of the accused to whom they are being put, once again providing
that they fall within other rules for the admissibility of evidence.
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Those other rules of evidence must create a situation where counsel for the co-accused who is putting
these questions must have been able to legitimately adduce that material as part of their evidence in
chief: if so, they are permitted to put it to other accused who choose to testify (by way of cross
examination.)
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They give no right to raise these matters for the first time with an accused under cross examination.
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SARAH FYNES-CLINTON

3.
The only right they give is to cross-examine an accused about material that is legitimately
admissible as part of someone’s case in chief.
s 15(2)(c): Where the accused raises good character or casts imputations on the character of crown
witnesses or co-accused.
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Extends CL re: casting imputations on character of others – now raises the accused’s character.
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Provides some consequences to accused persons who want to accuse Crown witnesses of lying.

An accused CAN open their own character to examination by attacking the character of others. Those
others are the prosecutor, any Crown witness or the co-accused
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s 15 (2)(c) only opens the accused character if the attack is truly an attack on the character on one of
those people.
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For example that they are a liar, that they are guilty of pro-active dishonesty. That is clearly an
imputation on the character of somebody
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Cf when an accused is suggesting that a Crown witness or a co accused is inaccurate. That is not
an attack on their character.
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Questions put pursuant to (c) can only affect the credit of the accused. They are not evidence of the
main facts in issue not withstanding the evidence given.
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Requires leave of the court.
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Meaning of ‘casting imputations’:
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Must go beyond a mere denial of the offence, even though a denial might imply that the Crown’s
witness is lying.
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Must be an express attack on the Crown witness: Phillips
Phillips
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Rape case.
P’s fingerprints were found outside the complainant’s window.
He explained this by saying that the complainant was a drug user, and he had been at her place on another occasion and looked through
her window for the purpose of giving her drugs.
Held:
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It was casting imputations on her character so far as it suggests that the complainant was a user of drugs and therefore her credit was
diminished.
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Accused was allowed to be cross examined re: prior convictions.
Britsman
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Held that where an accused asserted at a witness was a liar, that didn’t mean it was an attack on character necessarily.
Liar is used robustly in the community and may just be intending to say that they are inaccurate. Each case will turn on its own facts.
4.
s 15 (2)(d): where an accused gives evidence against a co-accused.
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The effect of that goes to credit only. It is not evidence that proves the main facts in issue purse.
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Where one accused dobs in his co accused, he exposes his own character to scrutiny by counsel for the
co-accused (not the Crown).
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this is for the purpose of discrediting the accused only.
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s 15(3) contains a requirement that before an accused’s character may be subjected to cross examination
MUST SEEK leave of the court, there are 2 issues:
(1)
technical issues;
(2)
fairness re: what has happened, is it fair to A to allow cross-examination.
The Court’s discretion is based on what the interests of justice require in all the circumstances: Phillips
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Phillips
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A charged with breaking and entering and rape.
In the course of the trial the prosecution sought and was granted leave to question the applicant concerning a number of previous
convictions for offences involving dishonesty.
A sought leave to appeal to the HC on the basis that the TJ failed to properly exercise his discretion.
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Held:
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appeal dismissed.
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The discretion to be exercised by the TJ on an application by the prosecution to cross-examine D on his prior criminal record is unfettered
and governed solely by what the interests of justice require in a particular case.
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SARAH FYNES-CLINTON
Here evidence of dishonesty was held not to prejudice D with regard to a charge of rape.
SIMILAR FACT/PROPENSITY EVIDENCE
COMMON LAW

“Similar Facts” is a misleading expression - it deals with the admissibility of evidence of similar conduct
by an accused on previous occasions to prove the offence or civil conduct with which he or she is charged
or which it is alleged he or she committed, or some element of it.

evidence of a modus operandi is similar fact evidence.
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More recent cases refer to the term “Propensity Evidence”; Pfennig v The Queen (1995).
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Must add something positive to the crown case.
Must have as enhanced degree of relevance.
It will have the necessary degree of relevance if it serves to prove the main facts in issue.
GENERAL RULE: Exclude similar fact evidence: BRS v R
WHEN OFFERING SIMILAR FACT EVIDENCE CONSIDER:
1.
2.
3.
4.
5.
Proof of involvement in prior conduct through admissible evidence
Proof of conviction “mini trial” or on “voir dire”
Must prove the facts of the prior convictions
Call witness and give evidence of the accused involvement
Conduct is relevant as circumstantial evidence – that previous conduct happened and is sufficiently relevant
to conduct now
 Thomson was charged with the armed robbery of the Westpac Bank at St Lucia.
 It will be crucial for us to assume that he had two prior convictions for armed robbery.
CRIMINAL CASES
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The classic statement of the principles governing this area is found in Makin v Attorney-General (NSW)
where Lord Herschell stated: (THE MAJOR CASE ON THIS POINT)
Makin v Attorney General (1894)
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Held:
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Baby farming case.
Makins were charged with the murder of an infant. Body of the infant was buried in the backyard
Said that infant died of natural causes
Probably should have told the authorities – only guilty of concealing the death and NOT murder.
1890s- not unusual
The Crown claimed that the infant was murdered deliberately
Received child into care upon payment of sum of money
Mothers paid money to raise child to adulthood
M – killed child and kept the money. Difficult to prove – motive and opportunity – not much more
Police found at various premises of M’s 12 other children’s bodies– all taken in by M for the payment of a sum of money
Evidence of bad character
Extreme circumstances – if all previous conduct shows is bad character, it cannot be received
Said to show bad character and no more if it shows merely a propensity to commit crime or merely a disposition to commit a type of
crime.
Evidence of 12 previous deaths not admissible.
Per Lord Herschell:
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SARAH FYNES-CLINTON
It is undoubtedly not competent for the prosecution to adduce evidence tending to show 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. On the other hand, the
mere fact that the evidence adduced tends to show 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.
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Evidence of prior convictions to show propensity to commit the crime charged is not permissible.
Evidence is admissible where relevant to a particular issue:
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Identity through striking similarity – Straffen
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Rebut accident or other defence - Smith
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Two Limbs:
(1)
1st Limb of Makin:
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Embodies exclusionary aspect of the rule
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prejudice to accused’s character if the only relevance is to character of the accused to have a
propensity to commit this type of offence
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this is not admissible as the prejudicial effect outweighs the probative value.
(2)
2nd Limb of Makin:
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High probative value
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if previous conduct goes beyond character and propensity or disposition and can be shown to be
relevant to facts in issue then it is admissible notwithstanding prejudicial aspects in Pfennig’s
case.
PRE PFENNIG
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Similar fact evidence is admissible where the probative force clearly transcends its prejudicial effect.
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Makin categories were an example of high probative force.
POST PFENNIG
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The test for admissibility of similar fact and propensity evidence in Australia has moved to one of no
reasonable/rational view of the evidence which is inconsistent with the guilt of the accused: Sutton
Pfennig
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Young boy was sexually assaulted and murdered – his body was never found – presumed he was drowned in the Murray River.
The evidence against the accused was strong:
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he had a van;
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he was seen talking to the boy in the area;
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the boy’s bike and clothes were found in a reserve on the other side of the river and his van had been spotted there.
P had earlier pleaded guilty to abduction and sexual assault of a boy:
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he had picked up the boy and his bike and put them in his van;
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he drove away from the scene and put the bike in another location;
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he took the boy back to his house and sexually assaulted him over a period time, but the boy escaped.
He had pleaded guilty.
This evidence was so important and potentially so prejudicial to the accused that there needed to be a test for admissibility.
TEST: Facts of an alleged previous crime will be admissible if the trial judge concludes that, on the whole of the evidence, the similar fact
evidence, if accepted, bears no rational or reasonable explanation consistent with the innocence of the accused.
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only reasonable conclusion you could come to is the guilt of the accused.
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“No rational explanation” test – stricter test than previous.
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Following Pfennig these observations may be made:
(1)
This is a stricter test than earlier formulations.
(2)
Essentially is the same test that the jury must decide in respect to the whole case at the end of the
trial:
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SARAH FYNES-CLINTON
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ie must decide beyond a reasonable doubt on one issue of the trial.
No longer strictly necessary for the disputed evidence to disclose “striking similarities, unusual features
or an underlying unity”, although these may assist in satisfying the test.
APPLICATION OF PFENNIG IN QUEENSLAND
R v O’Keefe
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Arson case – essentially a modus operandi case.
The modus operandi of the accused was:
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he would start a fire on the property of someone he had a grudge against and
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another fire close by to distract the fire department to ensure that the first fire would cause greater damage.
He had done this before.
Court allowed the evidence because it was a signature method of carrying out the crime.
Said that the test was twofold:
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Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting the inference that the
accused is guilty of the offence charged?
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Look at the similar fact evidence in isolation and ask whether it supports an inference that the accused is guilty of the
offence charged (not a very high threshold).
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If the propensity evidence is admitted, is the evidence as a whole (assuming its accuracy and truth) reasonably capable of
excluding all innocent hypotheses?
In Hoch, a number of boys made allegations against a boarding master. The court said that when applying the
test of whether there is no other reasonable view except the similar fact evidence supporting the inference of
guilt, the boys could have got together and concocted the story.
In Qld, the explanation of collusion and concoction can be disregarded – s 132A
QUEENSLAND EVIDENCE ACT
132A Admissibility of similar fact evidence
In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled
inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if
any
132B Evidence of domestic violence
(1)
This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 30.
(2)
Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence
was committed is admissible in evidence in the proceeding.
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s 132A – the possibility of collusion does not make similar fact evidence inadmissible where the probative
value outweighs prejudice:
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uses old formula
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legislative response to Hoch v The Queen
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s 132B allows domestic relationship evidence for certain offences
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eg murder, assault.
CIVIL CASES
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95% of similar fact evidence cases occur in criminal law.
The scope for the introduction of SFE in civil trials is limited, however occasions will arise, for example, in
Trade Practices cases to show misleading conduct or in cases of insurance fraud.
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In such cases principles similar to those discussed in Pfennig will be applied.
Mister Figgins v Centrepoint Freeholds – admissible where it is logically probative of a fact in issue.
Sheldon v Sunalliance
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Pl made a claim against insurance company after house burnt down
Insurance co. refused to pay – arson
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SARAH FYNES-CLINTON
Plaintiff sued for breach of K of insurance
Insurance co. sought to use similar fact evidence against the plaintiff.
There was evidence that the pl has sustained several fires in premises they had lived in over 25 years – 3 or 4 houses burnt down in
suspicious circumstances.
Held:
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The criterion for admissibility is probative force.
The prerequisite cogency is that the evidence raises as a matter of common sense and experience the objective improbability of the event
having occurred other than as alleged by the party tendering the evidence – following Perry.
Similar fact evidence being adduced – proved a disposition that the accused had
Underlying rationale is element of prejudice in getting a fair trial
The strong probative value must outweigh the prejudice – here it did.
EVIDENCE OF THE CHARACTER OF WITNESSES (OTHER THAN AN ACCUSED)
QUEENSLAND
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s 16 QEA provides that ANY witness (other than the accused) may be asked whether they have prior
convictions subject to s 15A (this is a scheme by which the past misdeeds of a witness does not last
forever) e.g. fraud may effect honesty
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If they refuse to admit they have or deny that they do, s.16 facilitates proof of those convictions by the
tendering pursuant to s 52 of the certificate of conviction.
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The effect of that is that it only detracts from the credibility of the witness who has had the conviction
proved against them.
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If the provisions of s 15A apply these are not convictions that can be put pursuant to s 16.
COMMONWEALTH
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ss 102, 103 and 106
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The credibility rule 103
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Exception: cross-examination as to credibility
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Exception: rebutting denials by other evidence
EVIDENCE OF THE CHARACTER OF VICTIMS OF CRIME
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This is admissible whenever relevant, as e.g. to a defence of provocation or self-defence.
It includes specific acts and disposition as well as reputation.
Note Criminal law (Sexual Offences) Act 1978 s 4 as to general inadmissibility re victim of +a sex offence of
reputation for chastity or sexual conduct with persons other than accused.
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SARAH FYNES-CLINTON
THIS STUFF FOR INFORMATION ONLY
STRIKING SIMILARITY:
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May assist in determining whether there's no reasonable hypothesis.
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That is, just how similar are the facts of the case at hand and the facts of the previous conduct in
which the accused engaged.
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The facts may be so strikingly similar that the inference is irresistible, ie, if the accused did those
things then he must have done the offence at hand as well.
Example
- T in his two prior convictions for armed robbery demanded money from the teller stuffed it into a
leather satchel and before departing the bank placed a red rose on the counter with a little note
attached saying thankyou - same way that the Westpac at St Lucia was robbed
- That is permissible similar fact evidence reasoning at work.
- Its direct relevance is clearly to the issue of identity. The similarity is so striking that we can
clearly say that there is a modus operandi is at work, which stamps out the offender as being
one and the same person on all of these occasions.
R v Straffen (1952)
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S was charged with the murder by manual strangulation of 2 little girls at Bath.
S was found unfit to plead by reason of insanity.
S was instead committed to an institution.
1 year later S escaped the funny farm and was at large for a period of 4 hours.
During that period another little girl was murdered by strangulation.
S was seen near where the body was found, but there were other passers-by who may have committed the crime.
When questioned by the Cops, S admitted killing the 2 original girls at Bath, yet denied any responsibility for the new murder.
The trial judge admitted evidence of the statements made by S to the Cops, and also evidence of the 2 murders at bath. The following
point s of similarity existed between the 2 sets of killings:
In each case the victim(s) was a young girl;
Each of the children were killed by manual strangulation;
In no case was there any attempt at sexual interference or any apparent motive for the crime;
In no case was there any evidence of a struggle;
In no case was any attempt made to conceal the body, although that could easily have been done.
S appealed his conviction.
Held:
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In dismissing the Appeal, that Court of Appeal held that the similar fact evidence had been properly admitted.
Slade J. “In the opinion of the Court that evidence was rightly admitted, not for the purpose of showing…that the appellant was a
‘professional strangler’, but to show that he strangled the new girl; in other words, the purpose of identifying the murderer of the new girl
as being the same individual as the person who murdered the other 2 little girls in precisely the same way”.
The above evidence was of the highest possible probative value, and it would have been absurd to have held it inadmissible.
Out of ordinary, unusual features: In looking at striking similarity you're obviously looking for out of the
ordinary or unusual features.
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You don't look at each of these factors in isolation, you take them as a whole body, just as you do with
all other circumstantial evidence.
Sutton
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S accused with rape
S denied allegation
2 girls identified S
The third did not but said that there were striking similarities
All teens, lived near where attack occurred, grabbed from behind, hand placed on mouth, attacker wore jeans and smelt of smoke.
Events always in the same order
V taken to a school and the attacker left in the same direction.
One fact upon which the Crown sought to rely was that on the previous occasions it was known that the accused was a smoker and Mr
Sutton smoked - this was purportedly relied on as an element of similarity b/w the offences which could point to Sutton as the culprit on
the occasion in question.
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SARAH FYNES-CLINTON
The HC rejected this b/c it wasn't sufficiently out of the ordinary or unusual].
Held;
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In each case the substantial issue was identification
CANNOT consider the probative value of similar fact evidence without looking at it in light of all the other evidence.
SFE must be RELEVANT in some other way to show the accused had the propensity to commit the crime AND must have a strong degree of
probative force.
QUESTION: is whether each of the crimes was committed in such a manner so strikingly similar to the others that a jury could reasonably
conclude that it was the same person who was guilty of each offence?
If it meets this test but the prejudicial effect would outweigh its probative value, TJ may exclude it.
This case is near the borderline.
Many of the similar facts were not so unusual as to draw a strong inference that the assailant was the same person BUT let it in.
Modus operandi, system, pattern - When you're looking for out of the ordinary or unusual features of an
offence you will often look to things like modus operandi, system or pattern.
Examples:
Christie v R
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“Brides in the bath case”
Accused charged with murdering his spouse by drowning her in the bath tub
He said was an accident and that she had drowned while having a bath
2 previous spouses had drowned in bath tubs just after their marriage
strongly affected assessment of fact in issue - adds necessary probative value
strongly rebutted the defence of accident
relevant for similar fact evidence can be found, not only in proving the main facts in issue but in rebutting the defendant.
relevant to know that 2 previous spouses have also drowned in the bath.
Martin v Osborne
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M charged with unlawfully running a taxi cab without a license.
He admitted transporting people but said he was only giving them a lift.
Crown adduced evidence that M regularly, at the same place and at the same time picked people up in his motor car and drove to
Melbourne and therefore operated a service without a licence.
M claimed he was just giving these people a lift and denied that he was paid money or given a contribution towards petrol.
Crown asked question: Why would he do all these favours for free?
Held:
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Similar fact evidence rebutted innocent association
Inferred he was getting paid and evidence was admissible – should have had a licence.
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If there is something particularly unusual about the way a crime was committed and if the accused has
done this before in this particular way then can show the accused did the crime of which you are
inquiring
CONDUCT OF “MINI TRIAL”
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With SFE you are dealing with accusations that the accused has taken part in a certain part of conduct in
the past. You can’t just allege that, you must prove it by calling of admissible evidence.
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What invariably happens is that there will be a mini trial within the major trial.
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The Crown will call evidence seeking to prove the accused has taken part in certain conduct in the past
and it will adduce witnesses for this end alone.
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Now, what’s happening in this mini trial is that the judge has to become the arbiter of fact. The judge
has to rule on whether similar fact evidence fits the bill for admissibility. So before the judge can rule
that the similar fact evidence is admissible, he must make a preliminary ruling that the evidence
establishes it has having occurred - matter for the judge rather than the jury.
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Only one that ruling has been made, can you start all over again by letting the jury hear the witnesses
who say that the previous facts occurred and at the end of the trial giving them the correct direction
and letting them make of it what they will.
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SARAH FYNES-CLINTON
Whether or not a person has been convicted of something, you still have to have this mini trial in which
the evidence is adduced as to how these previous offences occurred. It is not enough just to know that
they did occur.
It is not enough just to know that T has two prior convictions for armed robbery.
What we want to know is how those robberies were carried out because then we will be able to
make a comparison with how this offence was carried out and if we see enough similarities we might
draw the inference that this offence was carried out by T and nobody else.
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