Sutton v The Queen

Sutton v The Queen - [1984] HCA 5 - HCA 1981 case summary — Zoe

[10]

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman [28] , so long as the general rule excluding similar fact evidence is maintained "the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together". It would be misleading for a judge to require some further "special feature of the case" - the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner [29] - before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent [30] with respect to the corresponding Victorian provision, that it did not "intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge - certainly not the evidence given by another person in relation to another charge". The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman [31] ; Novac [32] ).

[23]

But some relevant evidence is nevertheless inadmissible. To cite a famous passage from the opinion of Lord Herschell L.C. in Makin v. Attorney-General (N.S.W.) [39] : "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 in 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 is 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." That what was declared to be inadmissible in the first sentence of this passage is nevertheless relevant (i.e., logically probative) can be seen from numerous studies of offences in which recidivists are matched against first offenders, and by considering that it has never been doubted that evidence of motive (which can be viewed as propensity to commit the particular offence charged, in contradistinction to propensity to commit offences generally of the type charged) is relevant. All relevant evidence is prima facie admissible. The reason why the type of evidence referred to by Lord Herschell L.C. in the first sentence of the passage is inadmissible is, not because it is irrelevant, but because its logically probative significance is considered to be grossly outweighed by its prejudice to the accused, so that a fair trial is endangered if it is admitted; the law therefore exceptionally excludes this relevant evidence: whereas in the circumstances referred to in the second sentence the logically probative significance of the evidence is markedly greater. (See also Lord Moulton in R. v. Christie [40] .) Wells J. understood that the speeches in Boardman were directed to "fostering a fair and sensible exercise of the Christie discretion", i.e., the discretion to exclude "evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value" (per Lord Moulton in R. v. Christie [41] ). On this approach, the starting point is the relevance of the similar fact evidence and thus its admissibility unless excluded in exercise of the Christie discretion. This approach focused upon what his Honour thought to be a "unifying" and "ancestral" principle stated in these terms: Fundamentally, there is only one legal principle of evidence, and it is this: every item of evidence that is relevant to the issue - that is, that tends, of itself or in conjunction with other evidence, to prove or disprove a fact in issue - should be received and, quantum valeat, used for the purpose of that proof or disproof, unless some positive rule of law, based on judicially formulated policy, or on statute, prohibits that use. His Honour thought that a trial judge's approach to questions of admissibility should be to admit relevant evidence unless there is some applicable rule of exclusion: Once a disputed item of evidence is held to be relevant, the judicial mind must turn to the question whether any rule exists, by virtue of which the disputed item should be excluded, notwithstanding its relevance. This echoes what was said by Lord Goddard L.C.J. in R. v. Sims [42] : If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused; but if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence, and this we think is the correct view. It is plainly the sensible view. That passage was criticized by the Privy Council inNoor Mohamed v. The King [43] , their Lordships approving the different approach taken by Kennedy J. in R. v. Bond [44] : [I]f, as is plain, we have to recognize the existence of certain circumstances in which justice cannot be attained at the trial without a disclosure of prior offences, the utmost vigilance at least should be maintained in restricting the number of such cases, and in seeing that the general rule of the criminal law of England, which (to the credit, in my opinion, of English justice) excludes evidence of prior offences, is not broken or frittered away by the creation of novel and anomalous exceptions. The criticism of Sims was accepted in Boardman [45] . 1. [1973] A.C. 729, at pp. 756-757. 2. [1975] A.C., at p. 451. 3. [1894] A.C., at p. 65. 4. [1914] A.C. 545, at pp. 559, 560. 5. [1914] A.C., at p. 559. 6. [1946] 1 K.B. 531, at p. 539. 7. [1949] A.C. 182, at pp. 194-196. 8. [1906] 2 K.B. 389, at p. 398. 9. [1975] A.C., at pp. 440, 449, 456.

[30]

To be admissible the evidence must have "a strong degree of probative force" (per Lord Wilberforce in Reg. v. Boardman [53] ), or "a really material bearing on the issues to be decided" (per Lord Morris of Borth-y-Gest [54] , citing Harris v. Director of Public Prosecutions [55] ); it may not be going too far to say that it will be admissible only if it is "so very relevant that to exclude it would be an affront to common sense" (see per Lord Cross in Reg. v. Boardman [56] ; and see per Lord Hailsham of St. Marylebone [57] ). The cited passages admit of different interpretations. For my part, I prefer the formulation by Lord Cross. That formulation does not suggest that admissibility depends on the significance in the eyes of the jury of the similar fact evidence in proving the guilt of the accused. Admissibility depends on cogency to prove another fact, not upon the likelihood that the jury will convict the accused person if they accept the similar fact evidence: cf. Vaitos [58] . The cogency of similar fact evidence is assessed by reference to its connexion with a fact in issue or to a fact in the chain of proof of a fact in issue. The requirement of cogency to prove such a fact is not satisfied by the capacity of the evidence to engender mere prejudice; it must go clearly beyond that to be admissible. Provided the similar fact evidence exhibits a sufficient connexion with the fact to be proved - a question of degree to be assessed by the trial judge - and the fact to be proved is or is relevant to a fact in issue in the trial, the similar fact evidence is admissible. The phrases collected by Gibbs A.C.J. in the passage cited from Markby are indicative of the degree of the connexion which is sufficient. The Full Court of the Supreme Court of Victoria in Reg. v. Chee [59] appeared to give the Markby criterion a limited application, but a differently constituted Full Court in Vaitos has accepted its general applicability. Wells J., though attracted by Chee , acknowledged the binding force of Markby. Perry accords, of course, with the Boardman and Markby criterion. 1. (1978) 140 C.L.R., at p. 117. 2. [1975] A.C., at p. 444. 3. [1975] A.C., at p. 439. 4. [1952] A.C. 694, at p. 710. 5. [1975] A.C., at p. 456. 6. [1975] A.C., at pp. 452-453. 7. (1981) 4 A.Crim.R. 238, at p. 274. 8. [1980] V.R. 303.

[53]

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew 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 (emphasis added). That statement of the proposition was as one of two related but "independent" propositions which "together cover the entire field" (per Lord Hailsham of St. Marylebone, Director of Public Prosecutions v. Boardman [68] ). Lord Herschell's second proposition was: On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury It is plain, both from the reference to "purpose" in the first proposition and from the wording of the second proposition, that Lord Herschell L.C. did not propound the first proposition as a general positive rule of exclusion of evidence of commission of other crimes and the second proposition as but an exception grafted upon the first. To the contrary, he cited with approval the statement of Maule J. in Reg. v. Dossett [70] in which the combined effect of the two propositions is expressed in the form of a denial of any positive rule of exclusion: "[a]lthough the evidence offered may be proof of another felony, that circumstance does not render it inadmissible, if the evidence be otherwise receivable." Put another way, the effect of what was said in Makin is that evidence that an accused "is a man of bad character with a disposition to commit crimes" is, in itself, "deemed to be irrelevant in English law" (per Lord Salmon, Director of Public Prosecutions v. Boardman [71] ; see also per Latham C.J., Sodeman v. The King [72] ), but "may be admitted if it is relevant for other reasons" (Noor Mohamed v. The King [73] ). 1. [1894] A.C. 57, at p. 65. 2. [1975] A.C. 421, at p. 452. 3. (1846) 2 C. & K. 306, at p. 307 [175 E.R. 126, at p. 127]. 4. [1975] A.C., at p. 461. 5. (1936) 55 C.L.R. 192, at p. 206. 6. [1949] A.C. 182, at p. 195.

[57]

One finds, in judgments in "similar fact" cases since the decision in Makin v. Attorney-General, an increasing tendency to emphasize the fundamental character of the first of Lord Herschell's propositions, often at the cost of the second of them. In 1934, Viscount Sankey L.C., speaking for the Judicial Committee in words which were subsequently adopted by Latham C.J. in this Court, described that first proposition as "one of the most deeply rooted and jealously guarded principles of our criminal law" (Maxwell v. Director of Public Prosecutions [78] ; Burrows v. The King [79] ). Recognition of the importance of the first proposition and concern lest "the protection afforded by" [it] "be gravely impaired" (Noor Mohamed v. The King [80] ) have combined to cause it to be accepted as not merely one of two complementary propositions relating to prima facie relevance but as a substantive rule of exclusion. Thus it has been held that the fact that evidence may be relevant to some theoretical issue is insufficient to except it from the general rule of exclusion unless it can be seen to be in truth material to an actual issue which is raised in substance as distinct from being merely a formal issue raised by, for example, a plea of not guilty (Thompson v. The King [81] ; Noor Mohamed v. The King [82] ). In Markby v. The Queen [83] , the first proposition was stated by Gibbs A.C.J., with whose judgment Stephen, Jacobs and Aickin JJ. agreed, to be a general "rule of exclusion" which is a "rule of law". His Honour also stated that the question whether "similar fact evidence" was admissible should be approached on the basis that "the admission of [such] evidence is the exception rather than the rule". That approach of the present Chief Justice accords with that of Lord Wilberforce in Director of Public Prosecutions v. Boardman [84] . I agree with it. The present-day rationale of that general "rule of exclusion" should be seen as being that evidence of mere propensity to commit criminal offences, either generally or of the type charged, is liable to erode the presumption of innocence by substituting trial by prejudice and suspicion for trial by reference to the question whether the proven facts establish beyond reasonable doubt that the accused is guilty of the offence of which he stands charged.

[61]

In recent cases in this Court (Markby [1] and Perry v. The Queen [2] ) and in the House of Lords (Boardman [3] ), one finds statements to the effect that "similar fact evidence" is only admissible if it possesses "a strong degree of probative force". Such statements may well serve as timely admonitions of the need to safeguard against erosion of the general rule of exclusion by ensuring that the admission of "similar fact evidence" is restricted to the case where it is properly and positively seen, when viewed in the context of the evidence as a whole, as having "a really material bearing on the actual issues to be decided" (per Lord Morris of Borth-y-Gest, Boardman [4] ) as distinct from merely establishing bad character or propensity to commit crime or the particular type of crime. The general rule is that "similar fact evidence" is inadmissible. It is for the prosecution to demonstrate to the trial judge that any such evidence comes within the exception to that prima facie and fundamental rule of exclusion. That having been said however, I find difficulty with the proposition that a body of similar fact evidence which, in the above sense, is of "distinct" probative force is not admissible unless that probative force is "strong". It is true, as Brennan J. pointed out in Perry [5] , that the probative force of such evidence "depends upon the connexion, judged according to experience and common sense, between the facts directly established by the evidence and the fact in issue, which may be the conduct charged, the identity of the culprit or his state of mind" and that the "connexion is a question of degree". It is, for example, possible that there will be a need for strong or striking similarity between different offences or between the evidence of different witnesses about acts of the accused on different occasions or a need that there be strong evidence that the accused committed a "similar fact" offence before the relevant body of "similar fact" evidence will be admissible as having distinct probative force on a fact which is actually in issue. Once the necessary standard of similarity or proof which is necessary to give the evidence such probative force on a fact in issue is met however, it is difficult to see any proper basis in principle or authority for imposing a further requirement that the probative force of the similar fact evidence should be strong. I would prefer to say, adopting the words of Brennan J. in Perry [5a] , that what is necessary for the "similar fact evidence" to be admissible is that the "probative force of the evidence clearly transcends" - by which I understand his Honour to mean goes beyond - "the merely prejudicial effect" of proof of prior criminality or propensity. If the prosecution is unable to demonstrate that, in the circumstances of the particular case and in the context of the evidence as a whole, the "similar fact" evidence clearly has probative force, on a fact in issue, which is independent of or goes beyond its prejudicial effect as evidence of mere propensity, the "similar fact" evidence will not have been shown to come within the exception of the rule of exclusion and should be rejected.

[82]

In considering the admissibility of similar fact evidence the inference to be drawn from the fact when proved is one thing; the strength of the evidence required to prove the fact is another. There must be clear evidence which if accepted by the jury establishes that fact. No difficulty will ordinarily arise where the evidence, if accepted, directly establishes that fact but where the fact itself is a matter of inference then the inference must be capable of being clearly drawn from the evidence relied upon before that evidence is admissible. If it were not so, the requirement that evidence of similar facts should have strong probative force before being admissible would be considerably undermined. The proposition may be illustrated by reference to Perry v. The Queen [7] . In that case the accused was charged with the attempted murder of her husband by administering arsenic to him. Each of the similar facts sought to be proved was an instance of poisoning, by the ingestion of arsenic, of a person with whom the accused had a close association at the relevant time. The whole of the Court was of the view that evidence of one particular instance was inadmissible, not because that instance if proved would not constitute a similar fact carrying the necessary clear inference that the accused was guilty of the offence with which she was charged, but because the available evidence, even if accepted, did not prove with sufficient strength the ingestion of arsenic in order to provide a factual basis - a similar fact - upon which to found the ultimate inference. The instance to which I refer is that of Duncan. There was no direct evidence that the illness which he suffered was due to arsenical poisoning. If it was, it was a matter of inference and the evidence relied upon to support that inference was, even in the context of the other evidence (including that the ingestion of arsenic by the accused's husband), insufficient to establish with sufficient probative force the fact from which a further inference could be drawn that the accused had administered arsenic to her husband. And that, of course, had to be taken into account in determining whether the evidence in relation to Duncan was admissible. The question was not reached whether the similar fact which the Crown sought to prove in relation to him was sufficiently probative of the guilt of the accused of the offence with which she was charged. The evidence, even if accepted, failed to establish the similar fact with sufficient certainty to warrant its admission. Clearly enough, if there had been sufficiently strong evidence to establish that Duncan's illness was due to arsenical poisoning a majority would have concluded that the evidence was admissible because the coincidence would, in all the circumstances, have been too great according to ordinary human experience to avoid the conclusion that the accused was implicated. In other words, it would then not have been possible reasonably to conclude that the ingestion of arsenic by Duncan was in the circumstances a matter of mere coincidence.

[88]

That the trial judge did not err in her approach to the admission of the similar fact evidence in this case is, I think, enough to require the refusal of special leave to appeal. However, I would add that in giving the matter consideration I have reached the conclusion, not without hesitation, that her decision to admit the evidence was correct. It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately. Despite some suggestion to the contrary in the Court below, Perry v. The Queen did not require each set of similar facts in that case to be regarded separately in order to arrive at their probative value; it was merely that the impugned evidence, even when viewed in the context of the other evidence, did not have the required probative force. It was not, for example, held that the evidence of illness on the part of Duncan could not be viewed in the context of the illness of the accused's husband which was clearly due to arsenical poisoning. It was merely that even when so viewed the cause of Duncan's illness could not be sufficiently established as being the ingestion of arsenic to enable any further inference to be drawn with the requisite clarity. It was not, of course, possible to assume for the purpose of assisting in the drawing of that further inference that the accused administered arsenic to her husband for that was the very inference sought to be drawn from the evidence. But as Brennan J. [10] pointed out it is always the case that "evidence of a series of occurrences exhibiting a more attenuated similarity may be admissible because the frequency of the occurrence of the similar facts enhances the probative force of the evidence, though the necessary probative force would be lacking if the similar fact had occurred but once or on a few occasions only (cf. Reg. v. Scarrott [11] )".

[90]

In the present case, each of the complainants was between the ages of thirteen and eighteen years at the time the offences were committed. Each of the offences was committed in a school yard, two sets of offences in the same school yard. The first complainant identified the accused as her assailant. The second complainant said that the assailant was in his early twenties and the third said he was eighteen or twenty. Each of the complainants estimated his height to be about six feet and said that he was of medium build. The first and third complainants said that their assailant had blond hair; the second complainant said that her assailant had light brown or dark blond hair. All three said his hair was, in effect, shoulder length. The first complainant said that her assailant's hair was straight but the other two complainants said their assailant's hair was wavy. Each of the first two complainants said that her assailant smelt of cigarette smoke. The third said she could not smell anything on the breath of her assailant but said that he asked her if she had seen his matches. In each case the assailant was a lone offender on foot who grabbed his victim from behind or after he had been behind her and placed his hand (in two instances his right hand was specified) over her mouth. In the case of two of the complainants the offender placed his left arm around each girl, in the one instance around her arms or body or both and in the other instance pinning her arms. In the case of the third girl the assailant placed his hand around her neck. Each girl was told not to scream or to shut up or she would be killed. In each case the complainant was restrained by one of the offender's arms whilst she was taken to the place of the offence or offences. In each case the place of the offence or offences was a school yard within a short distance from the place of abduction. Each offence took place within a confined geographical area. The offence or offences in relation to each of the complainants took place at intervals of some five or six weeks. In each case the assailant left the complainant at the place of the offence or offences and made off in the same direction. The first complainant's assailant attempted oral sexual intercourse. In the case of each of the second and third girls the assailant had oral, anal and vaginal sexual intercourse. All of these circumstances, when considered together as they ought to have been, were, in my view, sufficient to eliminate coincidence and to require as the only reasonable finding the conclusion that the same man committed the offence or offences against each of the three complainants. The evidence in each case was for this reason admissible in the others and for this reason the offences formed a series of offences of the same or similar character. Since the evidence was admissible in this way no prejudice or embarrassment could be shown to arise from the trial of all the charges against the accused together.

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Judgment (90 paragraphs)

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