5194LAW Lecture Notes - Lecture 6: Fellatio, Henry J, Joinder
20 Jun 2018
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1. SIMILAR FACT, PROPENSITY AND TENDENCY EVIDENCE
1.1. Similar facts – intro
-Starting point: similar fact evidence (SFE) is prejudicial – prima facie inadmissible even if
relevant
-Potential Relevance of SFE
o1.Establish identity of perpetrator
strong circumstantial evidence that offences all committed by same person?
R v Straffen [1952] 2QB 911
probative value is objective unlikelihood of 2 criminals both committing
offence in same unusual way
o2.To negative defences, especially accident, coincidence
-BUT not relevant to show accused’s bad character or general criminal disposition or
propensity to commit crimes of particular type
-Different ways SFE emerges as a legal issue
o1.Joinder of charges on indictment
o2.Issue at trial – can prosecution adduce evidence of similar prior offences by
accused?
o3.Issue at trial – can prosecution adduce evidence of similar unproven complaints
against accused?
o4.Issue at trial – can prosecution adduce evidence of similar uncharged acts by
accused re same complainant?
1.2. Propensity and SFE
- Useful to distinguish propensity (aka disposition, tendency) & SFE
opropensity – accused has committed other criminal acts because they are a criminal
type or the type to commit crimes of a certain type
oSFE – might be admissible if relevant for non-propensity purpose (subject to SF test)
1.3. Example
- Issue: During cross-examination of the defendant charged with breaking and entering. The
defendant has a number of prior convictions for larceny.
- P: (to the defendant) You claim that the set of instruments you were carrying on the night
of the burglary was found by your shortly beforehand and that you had no idea as to their
illegitimate use.
- A: Yes.
- P: That is hard to believe given your prior background.
- D: We object, your Honour. Any allusion to the accused’s background is inadmissible on the
basis of the prohibition against dispositional evidence.
- J: Mr Prosecutor, do you know of any reason why the exclusionary rule should not apply in
this case?
- P: I withdraw my question your Honour.
1.4. Example
- Issue: whether the defendant was involved in a number of burglaries which occurred in the
local area.
- P: (during cross-examination of the defendant) You have been involved in a number of
burglaries in prior occasions, haven’t you?
- D: Objection, your Honour. The defendant’s prior criminal history is inadmissible.
- P: Your Honour, the prosecution would argue that the defendant has lost protection
against cross-examination in relation to prior criminal acts in this case because the
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previous burglaries were so similar in nature as to constitute exceptions to the prohibition
against dispositional evidence. Accordingly, we say that they are relevant to the
defendant’s guilt.
- J: This is a matter which would have been raised on a voir dire application before the start
of the trial. However, since this is a summary hearing I will overlook your mistake in this
case Madam Prosecutor. In what manner do you allege that the previous burglaries are
similar to the two with which the defendant is now charged?
- P: Your Honour, the defendant has been convicted on two prior occasions and charged on
a third occasion with burglary. In each of these cases entry to the premises was secured by
use of a burglar’s key and by disarming sophisticated alarm systems with which but
professional burglars are familiar, and nothing was taken in each case apart from rare
bottles of brandy. We would argue that the unusual nature of the entry and the unusual
type of material stolen which accords with the allegations arising out of the charges now
before the court brings these prior crimes within the similar fact rule of evidence.
- J: I am inclined to agree with you, Madam Prosecutor. Have you anything to put to me to
the contrary, defence council?
- D: Burglaries using sophisticated tools and techniques occur every day and everywhere
your Honour and cannot all be committed by the same person. We would argue that these
allegations are not sufficiently unusual to bring them within the purview of the exception.
- J: Were it not for the fact that only rare brandy was stolen in each case I would not allow
the prosecutor’s question. However, because of that additional factor your objection is
overruled.
1.5. Propensity
- ‘Whether the evidence has sufficient probative value to outweigh its prejudical effect must
in each case be a question of degree.’
oLord Chancellor Mackay in DPP v P [1991] 2 AC 447
Makin v A-G (NSW) [1894] AC 57
- Baby farmer case
- Fact in issue – cause of death of one baby
- SFE admitted of 12 dead babies found in yard
- SFE relevant to negate defence that child died of natural causes
oprobative because of objective unlikelihood of 12 babies dying of natural causes
- Lord Herschell’s 2 limb rule:
o1. Prosecution cannot adduce evidence to show that accused previously
committed criminal acts (other than those before the court) to suggest that the
accused is a criminal type, the sort of person likely, from criminal conduct or
character, to have committed the offence for which he is being tried.
o2. On the other hand, just because the evidence reveals that accused did commit
other crimes does not render it inadmissible if relevant to an issue in the case, & it
might be relevant if, eg, it bears on question of whether acts alleged to constitute
the crime were designed or accidental, or to rebut a defence otherwise open to
accused.
-Lord Herschell’s 2 limb rule, simplified:
o1. General rule – SFE not admissible to prove accused’s general or particular
propensity
o2. Exception applied when SFE relevant for non-propensity purpose
Pfennig v R (1995) 182 CLR 461
-SFE admitted at trial
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Document Summary
Starting point: similar fact evidence (sfe) is prejudicial prima facie inadmissible even if relevant. Probative value is objective unlikelihood of 2 criminals both committing offence in same unusual way: 2. to negative defences, especially accident, coincidence. But not relevant to show accused"s bad character or general criminal disposition or propensity to commit crimes of particular type. Issue: during cross-examination of the defendant charged with breaking and entering. The defendant has a number of prior convictions for larceny. P: (to the defendant) you claim that the set of instruments you were carrying on the night of the burglary was found by your shortly beforehand and that you had no idea as to their illegitimate use. P: that is hard to believe given your prior background. Any allusion to the accused"s background is inadmissible on the basis of the prohibition against dispositional evidence. Issue: whether the defendant was involved in a number of burglaries which occurred in the local area.
