The operation of s 101

11.52 Section 101 is in the following terms:

101 Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect^[61] it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

11.53 Three issues were canvassed in DP 69,^[62] whether:

• the common law requirements developed by the High Court in Hoch v The Queen^[63] and Pfennig v The Queen^[64] must be applied when determining, under s 101, and the probative value substantially outweighs any prejudicial effect;^[65]

• that test should be replaced by an ‘interests of justice’ test;^[66] and

• section 101 should be amended to apply in terms to any relevant evidence of prior misconduct of the accused.

Application of Hoch and Pfennig to s 101

11.54 The common law test of admissibility for tendency and coincidence evidence, developed in Hoch and in Pfennig, is that the evidence, to be admissible, must in all cases possess sufficient ‘probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged’.^[67]

11.55 Hoch concerned coincidence evidence. The accused was charged with sexual offences against three boys. The charges were heard together. The accused disputed the offences of which the boys gave evidence. Their evidence of the indecent dealings and the circumstances in which they were said to have occurred was strikingly similar. In the majority judgment, it was stated that the probative value of the evidence lay in ‘the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred’.^[68]

11.56 However, there was evidence that two of the boys were brothers and the third was a friend of one of the brothers. They lived in a boys’ home where the accused was employed as a recreation officer and there was evidence that the boys had an antipathy to the accused which may have been unrelated to the alleged sexual acts. The High Court held that the evidence admissible on each count was not admissible on the others, stating:

The evidence … has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence.^[69]

11.57 Pfennig concerned tendency evidence. The accused was charged with the murder of a 10-year-old boy at or near Murray Bridge in South Australia. The Crown relied upon circumstantial evidence including proof of the circumstances of an abduction and rape by the accused of another young boy, H, about a year later at Port Noarlunga. The accused had pleaded guilty to those offences. The issue on appeal was whether the latter evidence was admissible in respect of the charge of murder of the 10-year-old boy.

11.58 It was held that the evidence was admissible on the basis that the prosecution case pointed to an abduction of the boy for sexual purposes and that this required a person of the requisite disposition equipped with the means of carrying out an abduction. The evidence concerning the offence committed against H was adduced to prove the requisite disposition. There was also evidence that the accused was in the area at the relevant time and had a van with which to carry out the abduction. There was other admissible evidence of earlier contact between the accused and the boy and other evidence of relevance.

11.59 Applying Hoch, the majority expressed the view that because propensity evidence

has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.^[70]

In Hoch, it was held that the evidence satisfied this test.

11.60 In DP 69, the Commissions referred to the fact that the Australian Capital Territory (ACT) and federal courts have held that the Hoch/Pfennig test does not operate under s 101, but that the NSW Court of Criminal Appeal has held that it does.^[71] The NSW Court of Criminal Appeal in R v Ellis resolved this difference of view.^[72] It rejected the previous line of authority in NSW by holding that the Hoch/Pfennig test is not applicable under s 101.^[73] Subsequently, the High Court, having given leave to appeal, revoked that leave indicating that it agreed with the decision of Spigelman CJ in R v Ellis regarding the construction of the uniform Evidence Acts.^[74]

11.61 The Commissions, in DP 69, went on to summarise the present state of the law following settlement of the above issue.^[75] Reference was made to the comment of Spigelman CJ:

My conclusion in relation to the construction of s 101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the ‘no rational explanation’ test were satisfied.^[76]

11.62 Prior to the release of DP 69, a number of submissions and consultations had supported the adoption of the Hoch/Pfenning test for the admission of tendency and coincidence evidence in a criminal case.^[77] However, the opposing view received support from the majority of submissions and consultations addressing the issue.^[78]

11.63 The Commissions expressed the view that the Hoch/Pfenning test is too narrow and should not be the test for admission and that the reasoning of Spigelman CJ in Ellis is to be preferred both as a matter of construction and policy.^[79]

Submissions and consultations

11.64 The issue attracted some attention in consultations on DP 69 with views for^[80]and against^[81] the construction adopted in R v Ellis.

The Commissions’ view

11.65 The Commissions remain of the view that the construction of s 101 applied in R v Ellis is correct. As Spigelman CJ commented:

[T]here are a number of indications in the regime of tendency and coincidence evidence, found in Pt 3.6, that the parliaments intended to lay down a set of principles to cover the relevant fields to the exclusion of the common law principles previously applicable.^[82]

11.66 Among the indications noted were:

• the use of terminology not used in the common law such as ‘tendency evidence’ and ‘coincidence evidence’;

• the definition of ‘related events’;

• the fact that the express provisions for tendency evidence clarified the common law at the time of their introduction;

• the introduction of a notice system; and

• the inconsistency between the balancing test stated in s 101(2) and the Pfennig test.^[83]

11.67 In addition, as a matter of principle, the ‘no rational explanation’ test should not be accepted as a test of universal application. It requires the trial judge, and, where there is an appeal, the appeal court to perform the task of the jury and evaluate the strength of the evidence and apply the same test that the jury must apply in determining the question of guilt where the evidence is admitted.^[84] Further, the trial judge must generally do so before the evidence has been adduced and tested, relying upon the committal depositions and other written material.^[85]

11.68 Finally, from a policy perspective, the test is inconsistent with the policy framework which underlies the Acts. The ‘no rational explanation’ test will exclude probative evidence of minimal prejudicial effect. Even though the probative value may clearly outweigh any prejudicial effect, it can be excluded under the ‘no rational explanation’ test.^[86] It may be said that the ‘no rational explanation’ test gives more ‘guidance’ than the balancing test,^[87] but it does so at a price—the exclusion of probative evidence which should be left to the consideration of the jury. The Commissions continue to endorse the reasoning in R v Ellis.

‘Interests of justice’ alternative for s 101

11.69 Another issue raised in relation to s 101 is whether the uniform Evidence Acts should take a different approach by incorporating an ‘interests of justice’ test to control admissibility of tendency and coincidence evidence in criminal trials. In DP 69, the Commissions considered recently published proposals for an ‘interests of justice’ test for England and Wales,^[88] and the test in s 398A Crimes Act 1958 (Vic).^[89] The Commissions compared the operation of the uniform Evidence Acts and the Victorian test.^[90]

11.70 Section 398A of the Crimes Act 1958 (Vic) states:

(1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary.

11.71 ‘Propensity evidence’ is not defined but has been held to include evidence which discloses the commission of offences other than those with which the accused is charged. However, it is not confined to such evidence and covers any evidence which, if accepted, discloses conduct which is discreditable or reflects badly on the accused’s character.^[91] It covers what has been called in the past ‘similar fact evidence’ and can also include relationship evidence. It may go to the identity of the offender or reliance may be placed on the improbability of a number of similar incidents occurring coincidentally.^[92]

11.72 In DP 69, the Commissions expressed the view that the uniform Evidence Acts’ approach is to be preferred to the proposal of the Law Commission of England and Wales for a hybrid approach.^[93]

11.73 In considering and comparing the uniform Evidence Acts and s 398A of the Evidence Act 1958 (Vic), the Commissions concluded that it could not be said that the two approaches have produced significantly different fact-finding outcomes. However, in the Commissions’ view, the uniform Evidence Acts better serve a number of other policy objectives: a fair trial, accessibility, predictability, cost and time, and uniformity.^[94] As to minimising the risk of wrongful conviction, the Commissions expressed the view that, on balance, there is potentially a greater risk of wrongful conviction under s 398A of the Crimes Act 1958 (Vic) than under the uniform Evidence Act provisions. The Commissions therefore expressed a preference for the approach of the uniform Evidence Acts.

Submissions and consultations

11.74 In consultations on DP 69, the ‘interests of justice’ approach attracted little support.^[95] The UK approach was criticised as too vague^[96] and s 398A of the Crimes Act 1958 (Vic) as too broad and difficult to understand.^[97] Preference was expressed for a structured approach.^[98] An issue was also raised as to whether it might be useful to provide a ‘shopping list’ of factors to be considered in applying s 101.^[99] Such a list would need to be expressed in generalities and the Commissions are not persuaded that it would be beneficial.

The Commissions’ view

11.75 The Commissions reaffirm their original conclusion that the uniform Evidence Act approach is to be preferred.

Broadening the categories of evidence to which s 101 applies

11.76 The final issue referred to in DP 69 is whether s 101 should be extended to apply to any evidence tendered against a defendant which discloses disreputable conduct although tendered for a non-tendency or non-coincidence purpose.^[100] This issue emerged in the course of consultations on IP 28. There was support for a wider approach because the prejudicial effect of evidence of the kind dealt with in the section will be present, whatever is the stated purpose of the tender of the evidence.

11.77 The typical case is where the Crown tenders evidence of prior misconduct relevant to establish the nature of the relationship between an accused and a victim in a sexual assault case. Such evidence will often also be relevant because it shows a tendency to behave in a particular way. The same issues can arise in relation to evidence relevant as setting the context in which the alleged events occurred or evidence relevant to the issue of lack of complaint by the victim.

11.78 Under the uniform Evidence Acts, such evidence will be subject to the control of s 101 if it is adduced for the purpose of showing a relevant tendency or a coincidence.^[101] However, if the purpose of the tender is expressly limited to a different purpose, such as the establishment of the relationship, s 101 will not apply. The use and admissibility of the evidence will be controlled by ss 135–137. Where such evidence is admitted, the trial judge must give warnings and directions about the appropriate use of the evidence and warn that it cannot be used as proof of any propensity of the accused, thereby addressing any prejudicial effects the evidence might have.^[102]

11.79 To achieve this result, the language of s 101 forbids the use of the evidence against an accused person when relevant and tendered to prove a tendency or coincidence unless the stated test is satisfied. Section 101 does not limit the use or, as a consequence, render the evidence inadmissible, where it is relevant and it is tendered for other purposes. In this, the section is arguably intended to reflect the common law position as it had developed prior to Pfennig v The Queen.^[103]

Submissions and consultations

11.80 There is strong support for widening the operation of s 101 to apply to evidence which discloses a tendency or coincidence, regardless of the purpose of the tender.^[104] Concern is expressed about the dangers of such evidence and what is seen as a too ready admission of such evidence.

11.81 The suggested widening of the operation of s 101 is also strongly opposed.^[105] Those taking that position express concern about the possible exclusion of important probative evidence in child and adult sexual assault cases and a potential for different and inconsistent outcomes.

The Commissions’ view

11.82 The views expressed in consultations and submissions again highlight the difficult task of formulating appropriate rules to deal with probative but prejudicial evidence in a way consistent with the policy framework. In this area there is a stark conflict between the policy objectives of receiving all probative evidence and minimising the risk of wrongful conviction.

11.83 Assessment of the issues has not been assisted by the arguments advanced. Views are expressed strongly, but not supported by evidence of actual experience with the operation of the section. Predictions made in submissions and consultations about the likely impact of the widening of the operation of the section do not explore in any detail the question of how the widened section would operate in practice.

11.84 Among those opposing the extension, the level of concern of some appears to have been affected by the experience of s 101 in the period when the Hoch/Pfennig principle was treated as applicable under s 101.^[106] That principle was likely to lead to the exclusion of evidence that should have been admitted and left for the jury’s consideration. In addition, it assisted applications for separate trials where numerous sexual assaults on different victims were alleged. While the better view appears to be that the Hoch/Pfennig principle did not apply to evidence of relationship or context,^[107] the experience appears to have heightened concern about the potential to exclude evidence of clear probative value if the operation of s 101 were to be extended. In some submissions opposing the extension, there is also some misunderstanding as to how the amended section would operate in practice.^[108]

11.85 The present limit to the operation of s 101 is difficult to justify when regard is had to the prejudicial impact of the evidence, because the prejudicial effect of the evidence will in reality be little different whatever is the purpose of the tender. It has been argued that

similar prejudicial consequences are likely to flow in any particular case whatever basis is advanced for the relevance of the evidence in that case. Whatever basis is advanced, the evidence will raise an inference of a particular propensity. It is the irrational impact of such evidence that carries the danger for the fair trial; it is that which may cause the miscarriage of justice.^[109]

11.86 But will the suggested extension of s 101 lead to more frequent limitation on the use of such prejudicial evidence and so result in its inadmissibility?^[110] Plainly those seeking extension of s 101 do so because they anticipate that this will be the result. However, such a result is unlikely.

11.87 In a trial, an accused might invoke an extended s 101 to seek the exclusion of evidence relevant to show the nature of a relationship because of the prejudicial effect of the propensities it reveals. To meet this argument, the Crown could disavow any attempt to use the evidence for any propensity purpose and concede the need for a warning that the evidence not be used for that purpose. If necessary, it could invite or consent to the court applying s 136 to limit the use to the nature of the relationship. While s 101 would still have to be satisfied, the Crown could argue that the prejudicial effect would thereby be overcome or significantly reduced and that the probative value of the evidence on the issue of the nature of the relationship substantially outweighs any remaining prejudicial effect.

11.88 If that is the approach taken under any extended version of s 101, it will be similar in practice to the operation of the common law^[111] and s 398A of the Crimes Act 1958 (Vic). As interpreted, s 398A requires a balancing test which considers what the evidence discloses. Under s 398A, such evidence is admitted to establish the relationship but generally is not permitted to be used for any propensity purpose. In the leading judgment in R v Best,^[112] Callaway JA stated that the directions that had become customary, at common law, where the Crown relies on relationship evidence in sexual cases should continue to be given. His Honour stated:

In R v Grech [1997] 2 VR 609, I discussed the directions that had become customary where the Crown relies on relationship evidence in sexual cases. They are well established by the authorities. Three things have to be done. The first is to explain to the jury the limited purpose for which the relationship evidence is admitted. The second is to direct them not to substitute that evidence for evidence of the offences charged. The third is to warn them against reasoning that because the accused engaged in other misconduct, he is the kind of person who was likely to have committed those offences.^[113]

11.89 A similar approach has been applied under the uniform Evidence Acts. For example, in R v ATM it was said that:

Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the^[114] trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused.^[115]

11.90 This approach is deeply ingrained and generally practiced in both common law and uniform Evidence Act jurisdictions. It is highly likely, therefore, that it will continue under any extended version of s 101. It should be noted that this approach, which requires warnings about the use that is allowed and the use that is forbidden, imposes an extremely difficult task on the judge and the jury but, whether s 101 is extended or not, it cannot be avoided.

11.91 Accepting that extending s 101 will not result in more or less evidence being admitted, are there any other benefits in amending the legislation in the way suggested? There are other considerations, but they are, at best, inconclusive.

• Accessibility. In applying the present Acts it is necessary to refer to the Dictionary to understand the operation of s 101 because the restriction on its operation arises from the fact that ‘tendency evidence’ and ‘coincidence evidence’ are defined by reference to the purpose of the tender. One way to widen the operation of s 101 would be to remove that aspect of the definition. Therefore, there is a possible marginal benefit in making the extension because the scope of the section could probably be understood without having to refer to the Dictionary. On the other hand, as demonstrated in those jurisdictions where the section has been operating for some time, once the section is understood, reference to the Dictionary is not needed.

• Simplifying the Acts’ application? At one level, extending the provision would simplify the application of s 101 in that one approach would be taken to the admissibility of any evidence of prior misconduct when adduced by the prosecution. However, at another level it introduces an issue that was not previously present when considering the admission of evidence relevant for a non-tendency purpose, such as relationship evidence—whether, and if so how, s 101 should be applied.

11.92 These are relevant considerations but they do not point in any clear direction and are marginal. The critical question is the practical impact of any change. In the Commissions’ view, a case has not been made out for change. The suggested change to the legislation is unlikely to result in different outcomes where questions arise as to the admissibility of evidence relevant for tendency or coincidence purposes and for other purposes.

11.93 In these circumstances, the appropriate course to follow is that suggested by the Director of the Criminal Law Review Division of the New South Wales Attorney General’s Department, that the section be applied in its current form in the light of R v Ellis, and monitored.^[116]