Tendency Evidence
76 In R v Fletcher, supra, the Court considered the question of tendency evidence in a quite different way than the issue arises in these proceedings. There was little, if any, difference on the principles to be applied in relation to tendency evidence between the majority (Simpson and Johnson JJ) and my dissenting judgment; the difference ultimately was the application of those principles to the facts in that case. In R v Fletcher, the Crown sought to tender material on the basis of s.97 of the Evidence Act and the question before the Court was whether the Judge in admitting some of the evidence was correct, i.e. whether the evidence sought to be tendered met the requirements of s.97 of the Act.
77 In this case, the Crown seeks to tender evidence which it says is not being adduced to prove tendency. In other words, the Court is not faced with the issue of whether the evidence satisfies s.97 of the Act, but rather whether s.97 of the Act applies to exclude the evidence; i.e. is it tendency evidence?
78 Unless excluded by a specific provision of the Evidence Act, all relevant evidence is admissible: s.56 of the Act. It is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue in the proceeding": s.55 of the Act. Probative value is the extent to which evidence is relevant.
79 Thus the first question that must be asked by any person seeking to adduce evidence is "could the evidence rationally affect (directly or indirectly) the probability of the existence of a fact in issue?" If the answer to that is in the affirmative, then, subject to exclusionary provisions, it is admissible. But s.97 is an exclusionary provision. It excludes tendency evidence unless the requirements of s.97 are satisfied.
80 Evidence of a tendency that a person has or had, to act in a particular way, or have a particular state of mind, in order to prove that the person did, at the point in time relevant to the issues before the Court, act in a particular way, or have a particular state of mind, is tendency evidence. It will be prohibited, notwithstanding that it is relevant, unless it satisfies s.97 (and in the case of a criminal proceeding, s.101) of the Act.
81 The question that must be asked in relation to such evidence, or indeed any evidence, when evaluating relevance, is precisely how it seeks to make more probable the existence of the fact in issue. If it affects, rationally, the assessment of the probability of the existence of the fact in issue by applying a reasoning process described in s.97 ("tendency reasoning"), it is inadmissible unless it has a significant probative value. Section 97 of the Evidence Act is engaged by the purpose and reasoning process, not its rational effect;
"What is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is adduced as a matter of law, the evidence is not admissible." (per Lord Hailsham in DPP v Boardman [1975] AC 421 at 453)
82 One must be careful in applying pre-Evidence Act judgments to the admissibility of tendency evidence under the Evidence Act. However, the common law principles on such issues may be used as a guide in the evaluation of the admissibility of evidence, even under the Evidence Act.
83 The High Court in Pfennig v The Queen (1995) 182 CLR 461 summarised the principles applicable, prior to the Evidence Act, in the following way:
"Propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged. …It was also accepted that in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force … must clearly transcend the prejudicial effect of mere criminality or propensity." (at pp 480-481) (The emphasis is my own)
84 To a large degree the provisions of s.97 reflect the above passage from the joint judgment of their Honours Mason CJ, Deane and Dawson JJ. Once the "propensity" or "tendency" reasoning process is involved, the prima facie position is that the evidence is inadmissible, unless it has a significant probative value. In other words, the reasoning process adopted must show something more than that the accused has a disposition to commit the crime or is the sort of person to commit the crime.
85 In Quach, supra, the evidence sought to be admitted was intercepted telephone conversations which went to the totality of the conduct giving rise to the supply of drugs on the particular occasion with which the accused was charged. In other words the evidence was admissible because it formed the totality of the conduct leading up to the charge in question and its probative value did not depend on tendency reasoning.
86 The material that was sought to be tendered in these proceedings was material relating to two past offences for the purpose of proving that the accused was a drug dealer. The relevance of that material was to show that the accused had a tendency or state of mind inconsistent with an innocent explanation for the existence of the drugs on premises which the accused occupied. Its probative value is that, because the accused has previously been convicted (not that long ago) of conduct amounting to dealing in drugs, it is more likely that the accused is still dealing in drugs and that, therefore, the existence of the drugs on her premises is not innocent. That is classic propensity reasoning.
87 It is evidence of a tendency (to deal in drugs), to act in a particular way (to deal in drugs), to have a particular state of mind (the intention to use drugs impermissibly or knowledge of the existence of the drugs), adduced in order to prove that the respondent did, at the time that drugs were found on premises she occupied (the date of offence), act in a particular way (have possession of the drugs), or have a particular state of mind (the intention to use the drugs found). It fits precisely the description in s.97 of the Act of the reasoning process which renders evidence propensity evidence.
88 Even prior to the Evidence Act a number of the cases involving the admissibility of propensity evidence turned on the use of the evidence to disprove innocent explanation or coincidence. It relies on an inference drawn from human experience which would render the innocent explanation improbable. See, for example, Noor Mohamed v The King [1949] AC 182.
89 Harriman, supra, is not inconsistent with the analysis in Pfennig (and in any event, pre-dates it). In Harriman, the distinction is made by Brennan J (as he then was) between "the mere commission of another offence or predisposition to commit an offence" and the situation where "as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence." (emphasis is mine)
90 The difficulty in analysing the pre-Evidence Act cases in light of the Evidence Act is that, pre-Evidence Act, propensity was used in two quite distinct ways. It was predominantly used to refer to the process of reasoning which relies upon the commission (or evidence) of one offence, and the tendency to criminality, to prove another offence before the courts. It is there used to refer to a chain of reasoning which, when it does not go beyond that referred to in the immediately preceding sentence, is impermissible. But under the common law, such evidence is permissible and admissible when it goes, on the basis of human experience, to the probability of the commission of the very offence with which the accused has been charged.
91 Section 97 seeks to implement a distinction which, in general, the pre-Evidence Act cases proposed. Section 97 deals with all evidence, whether or not admissible, that is probative because of "tendency reasoning". It renders it inadmissible unless its probative value is significant. That exception is the Evidence Act equivalent of the common law allowing evidence that goes to the probability of the very offence before the Court and was, under the common law, admissible.
92 Because the evidence sought to be adduced before the sentencing judge was tendency evidence: it relies on tendency reasoning: it is inadmissible unless and until the requirements of s.97 of the Act are satisfied.
93 In the instant proceedings, as already stated, the Crown did not rely, before his Honour, on the provisions of s.97 and did not seek to show that the evidence in question satisfied s.97 (and ultimately s.101(2)). In those circumstances, his Honour was correct to reject the evidence on the basis proffered by the Crown. Such a rejection would not prohibit the Crown from seeking to tender the material again on a different basis. For that reason, ordinarily, I would be inclined to dismiss the appeal and leave it to the Crown to determine whether, and in what circumstances, it would seek again to tender the material.
94 However, given both my agreement with the reasons of Simpson J and the manner in which the matter has been argued, I join in the orders proposed by her Honour, namely: that the appeal be allowed, the decision to reject the evidence be vacated; and the matter be remitted to be determined by the District Court. Such a determination must depend upon notice being given which should particularise the tendency sought to be proven and its probative value. Of course, his Honour may waive notice pursuant to the terms of s.100 of the Evidence Act, but that is a matter within his Honour's discretion upon which I do not comment.
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