Percy, Tom; Niesten, Jessikah --- "Propensity and tendency evidence: Is it worth the risk of an unfair trial?" [2022] PrecedentAULA 48; (2022) 172 Precedent 4

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PROPENSITY AND TENDENCY EVIDENCE

IS IT WORTH THE RISK OF AN UNFAIR TRIAL?

By Tom Percy QC and Jessikah Niesten

This article seeks to question the proposition that it is generally in the public interest to allow evidence of an accused's propensity or tendency to commit an offence to be admissible at their trial.

A notion that once pervaded the criminal law was to the effect that an accused person was entitled to a trial on the evidence relating to the charge before the court, rather than one relying on their prior record, background or other imperfections in their character.

For better or for worse, the trend in recent times seems to have decidedly moved away from this position. The foundational concept of a fair trial is that the evidence should support the charges. This evidence might be direct or circumstantial but it must be relevant to the charges in order to be admissible. However, in recent times the expansive view of propensity and tendency evidence has sought to broaden the concept of relevance to include issues that are not directly related to the charges and events in question.

In Pfennig v The Queen, McHugh J suggested that the ‘interests of justice’ might require the admission of similar fact evidence, despite the risk that a fair trial may be prejudiced.^[1] To most lawyers, anything other than a very remote prospect of an unfair trial is unacceptable. One would expect that fair-minded members of the community would – although possibly not to the same extent as lawyers – find that sort of risk equally unattractive.

The question to be asked in an era where the old rule regarding similar fact evidence has gone by the wayside and a new practice of allowing tendency and propensity evidence as the norm, is whether or not this has moved in an altogether dangerous direction.

COMMON LAW ‘SIMILAR FACT’ EVIDENCE

Similar fact evidence is evidence of criminal or otherwise discreditable conduct on the part of an accused person, which is prima facie unrelated to the events in question but possesses a high degree of probative value. It is generally admitted to show that an accused person had a relevant tendency or propensity for conduct that shares a common feature with the conduct that is the subject of the proceedings.^[2]

In a NSW case, Makin v Attorney-General, it was established that, as a general rule, evidence of a past similar event should not be admissible other than in exceptional circumstances.^[3] This was confirmed by the High Court in Phillips v The Queen,^[4] where the joint judgment held that admission of similar fact evidence was exceptional and required a 'strong degree of probative force'.^[5]

The similar fact exception at common law arose where the evidence in question was considered to be so strikingly similar as to constitute an affront to common sense if it were not admitted as part of the evidence in the case. This might occur in circumstances where a previous modus operandi of the accused was the same and there was no other rational explanation for the conduct other than that the accused was the offender in the present case. The test at common law was difficult to satisfy and the admission of such evidence was generally seen as being exceptional.

Even where the evidence of two or more crimes was very similar, the evidence could still be excluded due to its prejudicial effect. However, if the prosecution could establish that there was such a high degree of similarity between the two events so as to make any hypothesis that the second (disputed) event was committed by someone other than the perpetrator of the first, then the evidence would pass the test of admissibility.

To govern the admission of prejudicial propensity and similar fact evidence, the common law developed the ‘no rational view of the evidence’ test.^[6] This meant that in determining the admissibility of such evidence, if there was a rational view of the evidence that was inconsistent with the guilt of the accused, it would not be admitted.^[7]

The High Court in Hoch v The Queen^[8] adopted this approach, and the test was confirmed by the majority in Pfennig v The Queen,^[9] albeit with two somewhat different versions of the application of the rule.

Chief Justice Mason and Deane and Dawson JJ preferred a narrow construction, which encompassed an inflexible test of admissibility.^[10] This required that there must be an identifiable ‘hallmark’ in the evidence. As such, mere propensity was not sufficient to amount to similar fact evidence. The narrow rule required that the evidence was cogent and had a specific connection with the issues to be decided in the case.^[11]

Justice McHugh instead favoured a broader rule with a more flexible test of admissibility: that the evidence needed to be so cogent that there could be no rational explanation that was consistent with the innocence of the accused.^[12] The broader rule contended that the trial judge would need to identify the nature of any risk as a result of the admission of the evidence before proceeding to make a value judgment as to its admissibility.^[13]

The Uniform Evidence Laws (UEL) now apply in both territories and in most states and have followed the strict, narrow approach. However, in WA, McHugh J's broader and more flexible test has been applied.

UNIFORM EVIDENCE LAWS

The UEL came into effect in 1995 and expanded the criteria for admitting what was essentially similar fact, propensity and tendency evidence well beyond that which previously existed at common law. Evidence that had previously failed to meet the strict requirements of the similar fact rule was now made relevant and admissible.

The test of whether tendency evidence should be admitted is dealt with under s97(1) of the UEL. This provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had to act or think in a particular way, is generally not admissible to prove that a person has or had a tendency to act in a particular way.

However, if the court finds that the evidence would have significant probative value, then such evidence may be adduced in these circumstances.

‘Significant probative value’ does not require that tendency or coincidence evidence has ‘striking similarities’ with the charged acts.^[14] The significance of the probative value is dependent upon the nature of the fact in issue to which it is said to be relevant and the significance of the evidence in establishing that fact.^[15]

Section 56 of the UEL defines ‘relevant evidence’ as evidence that is capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceedings.^[16]

The strength of the tendency evidence depends on indicia including:

• the number of occasions and time gaps between the particular conduct relied upon;

• the degree of similarity between the conduct or the circumstances; and

• whether the tendency evidence is disputed or adduced to explain or contract the tendency evidence adduced by another party.^[17]

A further step under s101 is required where the admission of tendency evidence relates to criminal proceedings. Section 101 provides that tendency evidence can only be used if its probative value outweighs any prejudicial effect it may have on the accused. This approach is used in NSW, the NT and the ACT.

In Tasmania, Victoria and the Commonwealth jurisdiction, the test under s101 is that the probative value of the evidence must substantially outweigh any prejudicial effect with regard to the accused. The effect of these provisions was to significantly ameliorate the strictness of the similar fact doctrine of admissibility.

Section 137 provides that the prosecution evidence must be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused. The common law previously gave the judge the discretion to exclude evidence if it was more prejudicial than probative. However, s137 requires the judge to balance probative value and unfair prejudice.

s31A OF THE WA EVIDENCE ACT – A MORE EXPANSIVE APPROACH

In non-UEL jurisdictions, such as WA, SA and Queensland, there have been similar moves to lessen the criteria for similar fact, propensity and tendency evidence.

Section 31A of the Evidence Act 1906 (WA) commenced on 1 January 2005. Prior to this, in WA the admission of similar fact and propensity evidence was governed by the common law. Section 31A provides that propensity evidence includes similar fact evidence or other evidence of the conduct of the accused person, or of the character or reputation of the accused person, or of a tendency that the accused person has or had.

Section 31A was intended to make it easier for WA courts to admit propensity evidence to show that an accused person had the inclination to commit conduct of a similar nature, either generally or towards a certain class of persons.^[18]

Section 31A provides that propensity evidence is admissible where the court is satisfied that the evidence has significant probative value, which outweighs the risk of an unfair trial. ‘Significant’ in this context has been held to amount to whether the evidence is 'important or of consequence'.^[19]

‘Probative value’, however, is not defined under the Act. In applying s31A in criminal proceedings, WA courts have therefore assessed the probative value as that which is taken ‘at its highest’, without the court determining what weight ought to be given to the evidence.^[20]

Significant probative value under s31A(2)(a) requires more than mere relevance.^[21] The degree of relevance, however, does not have to be substantial in nature in order to be admissible as evidence, as is the case in Tasmania, Victoria and the Commonwealth jurisdiction. The approach is a departure from the common law test in Pfennig, but is consistent with McHugh J's judgment in that case. Section 31A was introduced in part because the State was often not able to admit propensity evidence in sexual offences.

In enacting the legislation, the WA Parliament referred to a serial sex offender, GN.^[22] While GN had committed (and been convicted of) numerous sexual assaults over the years, his prior convictions were unable to be adduced in accordance with the test of propensity evidence as at common law.^[23]

The effect of s31A is that WA courts can now allow the admission of evidence that would have been prohibited under the common law. A jury is now able to hear about crimes of a similar nature previously committed by the accused, and use that evidence in deciding whether the accused committed the particular crime in question. Although s31A was originally enacted to deal with proceedings relating to sexual offences, this provision is also used regularly in cases involving drugs offences, violence and murder.

In admitting propensity evidence in criminal proceedings, there is an obvious risk that the jury may place too much emphasis on the fact that the accused committed the offences charged, on the basis that they have previously committed other offences of a similar nature.^[24]

Not long after s31A was introduced, it was applied in relation to sexual offending in VIM v The State of Western Australia^[25] (VIM), where the accused was charged with sexually abusing his two stepdaughters. The complainants’ evidence was permitted to be cross-admitted as propensity evidence on the basis that there was ‘an underlying unity or pattern’ in the way that each complainant was groomed.^[26]

Since VIM, there have been a great many cases determined in the Western Australian Court of Appeal that have attempted to clarify the correct application of s31A to cases of sexual assault. In a recent example, NTH v Western Australia,^[27] the Court allowed evidence relating to the appellant's previous convictions to be admitted as propensity evidence. The Court was satisfied that there was sufficient probative value to justify doing so, as the offending in each case related to the appellant sexually touching pre-adolescent girls, who were the children of family friends.

The Court considered the evidence to be significantly probative as it tended to show that the appellant had used his relationships with family friends to commit the offences. Furthermore, it was held to be significant as it demonstrated a pattern of offending over a period of time of approximately 15 years duration. ^[28]

THE TEST OF ‘SIGNIFICANT PROBATIVE VALUE’

In Daniels v The State of Western Australia,^[29] the trial judge allowed the evidence of an accused’s prior conviction for assaulting the deceased to be admitted on the basis that it added significant probative value to the ultimate fact in issue. The judge found that this evidence established the relationship between the accused and the complainant, as well as the accused’s prior conduct towards women. For this reason, the probative value of the evidence was held to outweigh the degree of risk of an unfair trial. On appeal, the Court found that any risk of the admission of propensity evidence could be adequately guarded against by an appropriate direction to the jury.^[30]

In Hughes v The Queen,^[31] the High Court dealt with the issue of whether tendency evidence needs to show similarity in the acts of the accused or be reflective of a particular modus operandi, in order to satisfy the threshold of having significant probative value.^[32] The Court observed that although the alleged acts in question were not particularly similar, the accused had demonstrated a tendency for opportunistic sexual activities with underage girls. As such, the Court found that this tendency might be used by a jury to evaluate whether it made it more likely that the accused had engaged in the offending behaviours.^[33]

In the case of McPhillamy v The Queen,^[34] the appellant was convicted, after trial before a jury, of six sexual offences against the complainant. The offending allegedly occurred on two occasions between 1995 and 1996 in the public toilets of the church where the appellant was employed. At the time of the offending, the complainant was 11 years old and under the appellant's supervision.

The prosecution sought to adduce tendency evidence concerning two witnesses, B and C, who alleged that they too were sexually assaulted by the appellant while he was working at a boarding school in 1985. The prosecution contended that although the relevant sexual acts of which the witnesses complained had occurred a decade before the alleged offending against the complainant, the evidence still had significant probative value to the case at hand.

The trial judge admitted the evidence as tendency evidence, the purpose of which was to demonstrate the appellant's sexual interest in teenage boys and moreover his ability to act upon those urges. The appellant appealed on the ground that the admission of the evidence had led to a miscarriage of justice.^[35]

The NSW Court of Criminal Appeal was divided on the question of whether the tendency evidence concerning B and C had significant probative value. The Court found that, although the first incidents had taken place a decade prior, this did not prevent the evidence from having significant probative value, as it tended to show that the appellant had an enduring sexual interest in teenage boys. The Court held (Harrison and Hulme JJ; Meagher JA dissenting) that there was sufficient similarity between the 1985 incidents and the offences allegedly committed between 1995 and 1996.^[36]

The appellant appealed to the High Court and a retrial was ordered. The High Court found that the 1985 incidents met the test of relevance, but that there was insufficient evidence to link the sexual misconduct and the alleged offending to show that there was a tendency to act on the sexual interest.^[37] It therefore failed to meet the test of admissibility as it was not of significant probative value.

CASES SINCE McPHILLAMY

In La Bianca v The State of Western Australia,^[38] propensity evidence concerning the appellant's past convictions for drugs in 1999 was admitted under s31A at trial, as demonstrating a tendency to engage in commercial dealings in substantial quantities of methylamphetamine. It was held, however, that the propensity evidence should not have been admitted as it was irrelevant to the question of possession, which was the issue at trial.

Wark v The State of Western Australia^[39] dealt with an allegation of sexually-motivated murder, which took place in 1999. In this case, the Court allowed evidence from a subsequent rape case against the accused in Queensland in 2007, where the complainant had been forced to give the accused her earring.

While the State's case was circumstantial, the Court found that there were striking similarities between the offences, as an earring said to have belonged to the deceased girl in the 1999 case had been found in the appellant's vehicle after her (the first victim’s) disappearance. The propensity evidence was permitted to be adduced so as to show that the accused had a modus operandi, which was to seek an earring from female hitchhikers before he violently assaulted them. On appeal, the Court reviewed the evidence as a whole and found that the propensity evidence was significantly probative to the assessment of a fact in issue.^[40]

Despite the prolonged gap in time between the propensity offences and the matter at trial, there were such similarities between the circumstances of the propensity evidence and of the charged offence that the long interval was less significant than if the evidence had lacked such striking similarities.^[41]

OVERVIEW

In the years since the introduction of s97 of the UEL and provisions such as s31A of the Evidence Act 1906 (WA), there has been no shortage of litigation attempting to clarify the parameters of admissibility of this kind of evidence. While it may have initially been thought that an assessment of whether any particular piece of evidence had the required quality would be comparatively straightforward, this has not been the case.

Despite significant guidance from the various courts of appeal, and on several occasions by the High Court, it is submitted that the variety of situations where the question may arise are so diverse that any definitive answer is still elusive.

The more important question to be asked in our assessment of the departure from the old common law regime, however, is whether the new approach has provided any significant benefit to the public or improved the fairness of the justice system generally.

The increase in admissibility of propensity and tendency evidence has certainly made life easier for prosecutors and made convictions easier to obtain. That was, of course, always its intended purpose. Whether the safeguards contained in the test for admissibility are sufficient, however, to adequately protect against wrongful convictions remains a matter of serious concern.

As well-intentioned as the recent trend towards propensity and tendency evidence might be, the authors submit that the test of admissibility is probably too wide to ensure that juries do not go down a course of impermissible reasoning and overvalue this type of evidence.^[42]

While there is a certain simplistic appeal to the idea of juries being fully appraised of an accused person's background and general proclivities towards anti-social or criminal behaviour, the risks implicit in such an approach are obvious, as is the possibility of wrongful convictions as a result.

Tom Percy QC is a barrister at Albert Wolff Chambers, Perth.

Jessikah Niesten is a law graduate working at Albert Wolff Chambers, Perth.

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^[1] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 (Pfennig), 138.

^[2] K Arenson, 'Propensity evidence in Victoria: A triumph for justice or an affront to civil liberties?', Melbourne University Law Review, Vol. 23, No. 2, 1999, 263 at 265.

^[3] Makin v Attorney-General (NSW) [1894] AC 57.

^[4] [2006] HCA 4; (2006) 158 A Crim R 431.

^[5] Ibid, 229–30.

^[6] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296.

^[7] Ibid.

^[8] Ibid.

^[9] Pfennig, above note 1, 482–83.

^[10] Ibid, 483 (Mason CJ, Deane and Dawson JJ).

^[11] Ibid.

^[12] Ibid, 530.

^[13] Ibid, 149.

^[14] R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, 85 [125] (Campbell JA, Howie and Rothman JJ

agreeing).

^[15] R v Lock (1997) 91 A Crim R 356, 361 (Hunt CJ at CL).

^[16] See also: R v Anna Zhang [2005] NSWCCA 437, [193] (Simpson J).

^[17] S Odgers, Uniform Evidence Law, 7th ed, Lawbook Co, 2006, 374 [1.3.6680].

^[18] Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004 (McGinty, Attorney-General), p4607c–4610a.

^[19] The State of Western Australia v Jackson [2019] WASCA 118, [18].

^[20] Donaldson v Western Australia [2005] WASCA 196; (2005) 31 WAR 122, 152 [153] (Roberts-Smith JA, Wheeler JA and Miller AJA agreeing); AJE v Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242, 254 [73] (Mazza JA and Beech J).

^[21] RMD v Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67, [185] (Beach J, Mazza JA).

^[22] Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004 (McGinty, Attorney-General).

^[23] Parliamentary debates, above note 18.

^[24] Evidence Act 1906 (WA), s31A(2)(b).

^[25] [2005] WASCA 233; (2005) 31 WAR 1 (Wheeler and Roberts-Smith JJA and Miller AJA).

^[26] Ibid, 33 [163].

^[27] [2020] WASCA 22.

^[28] Ibid, [113]–[117]; [170].

^[29] [2012] WASCA 213.

^[30] Ibid, [88] (Buss JA).

^[31] [2017] HCA 20; (2017) 92 ALJR 52.

^[32] Ibid, [37].

^[33] Ibid, [62]–[64].

^[34] McPhillamy v The Queen [2018] HCA 52 (McPhillamy).

^[35] Criminal Appeal Act 1912 (NSW), s6(1).

^[36] McPhillamy, above note 34, [127].

^[37] Ibid, [31].

^[38] La Bianca v The State of Western Australia [2019] WASCA 105 (La Bianca).

^[39] [2020] WASCA 19.

^[40] Ibid, [337]–[339].

^[41] Ibid, [326]. See also: Bennett v Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419, [33] (Martin CJ; Buss and Mazza JJA agreeing).

^[42] La Bianca, above note 38.