The Test to be Applied
30 In Pfennig v The Queen (1994-95) 182 CLR 461, Mason CJ, Deane and Dawson JJ, included relationship evidence as a species of propensity evidence. They said this: (at 464/465)
"There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense."
31 Their Honours then suggested the following test in respect of propensity evidence: (at 482/3)
"Because the propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it 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 ( Hoch (1988) 165 CLR 296)."
32 However, whereas the rule in respect of circumstantial evidence is ordinarily applied at the end of the evidence (or at least the close of the Crown case), and upon the whole of the evidence, the test should be applied to evidence which is but part of the proof offered by the Crown. Mason CJ, Deane and Dawson JJ said this: (at 483)
"…. the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect."
33 McHugh J disagreed with the majority's formulation of the test. He said this: (at 530)
"However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable propensity of the accused, must always meet this high standard. In the relationship cases, for example, propensity reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence."
34 In respect of relationship evidence, his Honour added: (at 532)
"But in the relationship cases, for example, where evidence of propensity is relied on as confirmatory or explanatory of evidence implicating the accused, I do not think that such a high standard is either required or appropriate."
35 McHugh J proposed the following test: (at 529)
"… the judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."
36 In R v Ritter (unreported, CCA, 31 August 1995), the accused was charged with the murder of his defacto wife. Evidence was led by the Crown concerning the relationship between the deceased and the accused. According to this evidence, the accused had, on other occasions, battered the deceased. Gleeson CJ (with whom Handley JA and Hume J agreed), identified the appellant's argument in these words: (at 6)
"… it was argued that the decision in Pfennig is authority for the proposition that evidence of the kind in question should have been rejected unless it were proper to conclude that its probative force was such that it bore no reasonable explanation other than the appellant's guilt of the crime charged. This, it was said, is the test to be applied whenever the Crown tenders evidence, for any purpose, which is evidence tending to show that an accused is guilty of a criminal offence other than that charged."
37 His Honour rejected that argument. He said this: (at 6/7)
"I am not persuaded that Pfennig is authority for that proposition.
There are many circumstances in which evidence, otherwise relevant and admissible, might disclose that an accused person has been guilty of some criminal offence other than that the subject of the current charge. For example, if a person is accused of committing a crime which is said to have occurred within a prison, evidence about the circumstances of the alleged offence will almost certainly reveal that the accused is a convicted criminal. Depending upon the case, it might also reveal the crime of which the accused had been previously convicted. Again, an account of the history of an alleged offence might incidentally reveal the commission by the accused of other offences. For example, in seeking to prove that an accused has engaged in a money laundering transaction, the Crown may tender evidence which reveals that, shortly before the transaction took place, the accused had come into possession of a large amount of cash as a result of an illegal drug deal. To take another example, it may be material to a charge that an accused person had attempted to bribe a police officer to prove that the accused had previously committed, or had told the police officer he had committed, an offence which he did not want investigated.
It can hardly be the case that, in the two examples just given, the evidence which reveals the commission of another offence is only admissible if it bears no reasonable explanation other than the accused's guilt of the offence of money laundering, or attempted bribery. In most cases of the kind mentioned, the evidence in question would not satisfy that test."
38 Pfennig was a case which concerned similar fact evidence, as the opening words of the majority judgment make plain. Gleeson CJ said this: (p 7)
"In the two examples mentioned above, the evidence in question was not propensity or similar fact evidence. The evidence of drug dealing would not establish a propensity to engage in money laundering, and the evidence of previous criminal behaviour would not establish a propensity to bribe police officers. Nor is there any similarity between the offences disclosed and the offences charged.
Similarly, in the present case the evidence in question was not led on the basis that it was propensity or similar fact evidence. It was led, in conformity with the decision of the High Court in Wilson , on the basis that it tended to establish matters relevant to the relationship between the appellant and the deceased. There is nothing in Pfennig which suggests that the High Court was setting out to overrule or qualify Wilson . Indeed, it may be remarked that, if Pfennig is authority for the proposition relied upon by senior counsel for the appellant in this appeal, then Wilson would seem to have been wrongly decided."
39 On the basis of this authority, I will deal with the admission of the evidence, applying the ordinary test. The Crown must demonstrate its relevance, which I believe it has. It is not necessary that the evidence meet the more rigorous standard suggested in Pfennig, namely that before it can be admitted, there must be no reasonable view of the evidence that is consistent with the innocence of the accused.