PROPENSITY, TENDENCY, & COINCIDENCE: RELATIONSHIP EVIDENCE IN THE HIGH COURT
PROPENSITY, TENDENCY, & COINCIDENCE: RELATIONSHIP EVIDENCE IN THE HIGH COURT T ORY R OBERTSON The constant conflict between the desirability of admitting all evidence having probative value on the one hand, and the desirability of excluding all evidence of a prejudicial nature on the other runs through a large part of the law of evidence. The problem of the admissibility of similar fact evidence reveals this conflict in its most intense form.1 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.2
I.
INTRODUCTION
The evolution of the conflict between the desire to admit all evidence holding probative value and the desire to exclude all evidence which is of a prejudicial nature, regardless of how slight has long been observed within the evolution of admissibility of evidence within Australia’s Judicial System.3 This conflict has long been discussed within the judicial system, originally within Makin v Attorney-General4 where the initial discussion for the fine line which evidence portraying tendency or coincidence treads was raised.5 More recently the application of Similar Fact/Propensity Evidence finds implementation within the Uniform Evidence Legislation (‘UEL’),6 and the Evidence Act 19777 with its subsequent inclusion via the Criminal Law Amendment Act 1997.8
Submitted for assessment LAW3321. 1 Cowan and Carter, Essays on the Law of Evidence (1956) Clarendon Press, Oxford, at 108. 2 Makin v Attorney-General [1894] AC 57, 65. 3 Wendy Harris, ‘Propensity Evidence, Similar Facts and the High Court’ (1995) 11 QUT Law Journal 97, 97 (‘Harris’); Andrew Hemming, ‘Is There Any Prospect of a Model Provision for Similar Fact/Propensity Evidence or the Coincidence/Tendency Rules in Australia?’ (2020) 44 Criminal Law Journal 207, 207 (‘Hemming’). 4 Makin v Attorney-General (n 2). 5 Andrew Hemming, Elisabeth Peden, and Miiko Kumar, Evidence: Commentary and Materials (Thomson Reuters (Professional) Australia Pty Limited, 8th ed, 2013) [9.80] (‘Hemming et al.’). 6 Evidence Act 1995 (Cth). 7 Evidence Act 1977 (Qld). 8 Criminal Law Amendment Act 1997 (Qld) Act No 3 of 1997.
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