Re Phillip Harold Bell v R [1985] FCA 454;

Re Phillip Harold Bell v R [1985] FCA 454; - FCA 1985 case summary — Zoe

[37]

"The principles governing the admissibility of

evidence of similar facts in criminal cases were

quite recently restated in Markby v. The Queen

[1978] HCA 29; (1978) 140 C.L.R. 108 at pp. 116-117. They derive

from the well known statement of Lord Herschell

L.C. in Makin v. Attorney-General (N.S.W.) (1894)

A.C. 57 at p. 65. The prosecution cannot adduce

evidence tending to show that the accused has been

guilty of criminal acts other than those with

which he is charged if the evidence shows only

that he had a propensity to commit crime, or crime

of a particular kind, or that he was the sort of

person likely to have committed the crime charged.

On the other hand, if the evidence is relevant in

some other way, it is admissible even though it

reveals that the accused was disposed or likely to

commit the sort of crime with which he is charged.

Cases since Makin v. Attorney-General (N.S.W.)

have established that even if the evidence is

legally admissible, the trial judge has a

discretion to exclude it if its prejudicial effect

is likely to be out of proportion to its true

evidential value.

. . . . .

It is true that in deciding whether the evidence

is admissible, questions of degree arise and that

the judgment to be made is to some extent

discretionary. It was said in Harris v. Director

of Public Prosecutions (1952) A.C. at p. 710, that

evidence of similar facts, to be admissible, must

have 'a really material bearing' on the issues to

be decided. The judgments in Reg. v. Boardman

show that there are degrees of relevance, and I

respectfully agree with the statement of Lord

Wilberforce that the evidence to be admissible

must have a 'strong degree of probative force':

Reg. v. Boardman (1955) A.C. at p. 444; see also

at pp. 439, 452-453, 456. In Reg. v. Chee (1980)

V.R. 303 at p. 308, the Full Court of the Supreme

Court of Victoria held that it was enough that the

similar fact evidence should have some probative

force, by which no doubt was meant probative force

other than merely by way of showing that the

accused had a propensity to commit the sort of

crime with which he was charged or was the sort of

person who was likely to commit such a crime. It

was there said that it was not a condition of

admissibility that the evidence should have a high

degree of probative force. With all respect, it

is not right to treat evidence which tends to show

the commission by the accused of other criminal

acts in the same way as any other circumstantial

evidence. In the first place, as I have already

said, a jury might place too much weight on the

fact that the accused had a criminal tendency.

Secondly, evidence of this kind will often raise

difficult and doubtful questions as to whether the

accused had in fact been guilty of other criminal

acts, and may distract the attention of the jury

from the vital issues in the case. It is

therefore not enough that the evidence should be

only technically relevant (otherwise than as

showing a propensity); it must be really

material; it must have strong probative force."

Evidence of similar facts is of particular relevance when purpose or

[56]

The answer to that submission is that the disputed evidence in the present case may not be placed in the category of similar fact evidence. It was undisputed that the appellant had acquired $1,000 worth of heroin before the day in question and had divided it up into smaller portions, some of which he intended to use himself and some of which he intended to sell. For the purpose of ascertaining what his purpose was in relation to the heroin that was or remained in his possession on 3 July 1985, it was logically probative - although not conclusive - to enquire as to whether and how the appellant had disposed of any part of the heroin since the time of its purchase. The admission that he had already sold two portions the previous day was probative of the purpose for which he was in possession of the remainder on 3 July 1984. Simply because the sale the previous day amounted to a separate offence not charged on the indictment, did not mean that it was a piece of evidence which could be placed before the jury only upon satisfaction of the rules relating to similar fact evidence. The law relating to similar fact evidence does not apply where the evidence in question relates to facts which are so closely connected with the essential facts constituting the charge that they are seen to form one transaction. In O'Leary v. The King (1946) 73 CLR, the accused was charged with the murder of a fellow worker who was found on a Sunday morning at a timber camp dying from recently inflicted injuries. Evidence was called to show that the accused had violently assaulted a number of other fellow workers during a drunken orgy at the camp which lasted from the Saturday morning until late on the Saturday night. It was held by a majority in the High Court that the evidence was rightly allowed as evidence of a single transaction. The judgment of Dixon J. in particular illustrates the difference between evidence which may be regarded as part and parcel of the same transaction which is admissible and evidence of similar facts which simply goes to display a particular disposition on the part of the accused person, which is inadmissible. On page 577 his Honour said as follows:

[74]

possession of the heroin consisted of his oral admission of the acquisition of the heroin and the sale of part of it on the previous day, the discovery of the money in his wallet and the peculiar nature of the packaging of the portions of heroin in his possession. The admission and the possession of the money went more directly to prove a separate offence, namely, the supply of heroin to another person or persons on the previous day. If that offence had been separately charged on the same indictment the trial judge would, in our view, have been obliged to instruct the jury that unless they found the charge of supplying heroin established beyond reasonable doubt, then the evidence of the previous supply was not available to prove the purpose of the subsequent possession: see Sutton v. The Queen [1984] HCA 5; (1984) 58 ALJR 60 at p.64 per Murphy J. and 65-66 per Brennan J. It is difficult to see how the Crown could have been placed in a stronger position simply by omitting to charge the separate offence of supplying heroin. Without the evidence of the previous supply of heroin, all that is left to prove the purpose of the possession is the nature of the packaging and the equivocal statement of the appellant that at the time of the acquisition of the bulk of the heroin he intended to "use some and sell some". Those remaining items of evidence would have been insufficient or barely sufficient to prove guilt and it would have been appropriate for the jury to have been told so. There was no direction to that effect or sought at the trial and the fact that counsel for the accused did not feel at that stage that such a direction was called for is an indication that no miscarriage of justice occurred or was likely to occur: Chamberlain v. The Queen [1983] FCA 78; (1983) 46 ALR 493 (Federal Court). The confessional evidence was admitted and rightly admitted. To say now that the jury might have more appropriately been given further instructions which were not sought at the trial and which were not required as a matter of law does not, in our view, lead to a conclusion that the conviction was unsafe and unsatisfactory.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Re Phillip Harold Bell v R [1985] FCA 454; (1985) 7 FCR 555 (5 December 1985)

Parties

Legislation Cited (12)

Cases Cited (9)