Author:Cossins, Annie

Contents I Introduction II The Legal Background III The Prejudicial Effect of Other Criminal Misconduct: 'Reasoning Prejudice' and 'Moral Prejudice' IV Cross-Admissibility in CSA Trials V The New South Wales and Victorian Approaches to Section 97 VI The Hughes Case A The Appellant's Arguments before the High Court B The Majority's Decision C General versus Particular Conduct D Problems with the Majority's Decision in Hughes VII Do Jurors Misuse Tendency Evidence about an Accused? A Methodology B Findings VIII Conclusion I Introduction

The frequency of joint trials of sex offences around Australia varies in relation to allegations of similar sexual conduct despite the existence of identical or virtually identical tests for the admissibility of tendency and coincidence evidence (defined below). This variation appears to be solely due to different subjective interpretations of the type of sexual conduct and the type of circumstances that will amount to probative value beyond mere relevance. One of the most interesting variations concerns the different interpretations of the test for admissibility under ss 97 and 98 of the Uniform Evidence Law ('UEL'), (1) 'significant probative value'.

These different interpretations have led to a split between the New South Wales and Victorian appellate courts in relation to the admissibility of tendency/coincidence evidence in child sexual assault ('CSA') trials. This split culminated in a recent appeal to the High Court after Robert Hughes appealed against his convictions for several counts of CSA on the grounds that the New South Wales Court of Criminal Appeal ('NSWCCA') had made an error in: (i) concluding that the tendency evidence admitted at his trial possessed 'significant probative value'; and (ii) rejecting the approach of the Victorian Court of Appeal ('VSCA') in Velkoski to the assessment of significant probative value. (2)

In a 4:3 decision, the High Court dismissed the appeal. The importance of the High Court decision lies in the fact that it will affect the admission of tendency evidence in all six UEL jurisdictions (3) as recognised by Gordon J in Hughes, (4) although there is some indication in the majority judgment that trial and appellate courts may still differ in their ultimate interpretation of whether the type of sexual conduct adduced as tendency evidence, and the specific circumstances in which it occurs, have significant probative value.

For this reason, as well as the closeness of the decision, this article analyses the extensive legal background to Hughes in order to investigate whether:

1 the majority judgment in Hughes has resolved the dispute between the Victorian and New South Wales appellate courts;

2 judges should be making judgments about the behaviour of alleged sex offenders without specialised knowledge to inform them, as suggested by Gageler J in Hughes; (5) and

3 future cases should consider the empirical evidence which contradicts the long-held proposition that evidence about a defendant's other criminal misconduct will be misused by juries.

Before discussing the facts and judgments in Hughes, it is necessary to summarise the legal background to the case for greater understanding of its significance.

II The Legal Background

Since the 1800s, the admissibility of a defendant's other criminal misconduct (6) in a criminal trial has attracted considerable controversy because of its assumed prejudicial effect on juries. (7) At common law in Australia, such evidence became known as 'propensity' or 'similar fact' evidence and was only admissible in exceptional circumstances. These were if:

* it was relevant to the current charges;

* it had striking similarities with the events and conduct that were the subject of those charges; and

* there was no rational view of the evidence consistent with the accused's innocence (the Pfennig test). (8)

Evidence of other criminal misconduct is known as tendency or coincidence evidence under ss 97 and 98 of the UEL, although these terms were intended to encompass common law propensity and similar fact evidence. (9) Tendency evidence is defined under s 97 as '[e]vidence of the character, reputation or conduct of a person, or a tendency that a person has or had ... to act in a particular way, or to have a particular state of mind'. It is notable that the definition does not refer to similarities in a person's conduct or state of mind, a point emphasised by the majority judges in Hughes. (10) By contrast, coincidence evidence is defined under s 98 with reference to similarities--it refers to two or more events being used to prove the improbability of the events occurring coincidently, having regard to the similarities of the events and/or the circumstances in which they occurred. If the similarities are sufficient, only then can the events be used to prove that the accused committed the alleged act (such as a sexual assault) or had a certain state of mind (such as sexual attraction).

Admissibility under ss 97 and 98 is framed in negative terms, in that tendency/coincidence evidence will not be admissible unless the court thinks the evidence will have significant probative value. As a second, albeit higher, test of relevance, (11) the test involves asking whether 'the evidence is capable, to a significant degree, of rationally affecting the assessment ... of the probability of the existence of a fact in issue'. (12) It is a subjective evaluation because ss 97(1)(b) and 98(1)(b) refer to whether 'the court thinks that the evidence will ... have significant probative value'. (13) This inherent subjectivity is important for critiquing what different courts have said about when tendency/coincidence evidence will be considered to exhibit significant probative value, a point highlighted by the majority in Hughes, discussed below.

If the evidence in question does have significant probative value and is adduced by the prosecution, s 101(2) of the UEL requires a court to balance its probative value against any prejudicial effect it may have on the defendant. Although this balancing test is a less stringent rule of exclusion than the Pfennig test, (14) tendency/coincidence evidence will only be admissible if its probative value substantially outweighs any prejudicial effect. (15)

As stated above, s 97 does not expressly rely on similarities between the charges in question and the other criminal conduct adduced to prove a defendant's tendency. But still the question remains: what degree of similarity is required for tendency evidence to possess significant probative value? This issue has plagued the interpretation of s 97 since it was enacted, particularly in sexual assault trials. It is this contentious issue that the High Court had to deal with in Hughes because of the belief that lay jurors will engage in propensity reasoning if dissimilar evidence of the defendant's conduct is admitted.

III The Prejudicial Effect of Other Criminal Misconduct: 'Reasoning Prejudice' and 'Moral Prejudice'

What is the risk of prejudice to someone like Hughes, who was tried in a joint trial where the jury heard evidence from several complainants and tendency witnesses? The term 'prejudice' has a particular meaning in criminal trials, especially in those involving tendency/coincidence evidence. While evidence is not unfairly prejudicial merely because it assists in proving the prosecution case by inculpating the accused, (16) it may be excluded because of unfairness to the accused,

in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. (17) The specific reasons for restricting the admissibility of other criminal misconduct evidence have been elucidated in several cases:

* to prevent 'undue suspicion against the accused [which] undermines the presumption of innocence'; (18)

* to prevent juries from using the evidence 'for an unintended and illegitimate purpose' or 'attach[ing] undue and disproportionate weight' to it; (19)

* 'juries ... tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct'; (20)

* '"[c]ommon assumptions about improbability of sequences are often wrong", and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association "is unlikely to be innocent"'; (21) and

* 'in many cases the facts of the other misconduct may cause a jury to be biased against the accused'. (22)

However, the above assumptions about jury reasoning are not based on empirical research but have acquired the status of truth from their repetition throughout the decades. In fact, the empirical evidence does not support them:

[A]ll of these hypotheses undergirding the conventional wisdom about prior crimes evidence are empirically testable. More than that, they have already been tested and most stand refuted or, at least, rendered highly implausible. That notwithstanding, many judges and legal scholars have been largely indifferent to, or unaware of, the empirical evidence, apparently persuaded that their own intuitions, grounded in decades of judicial experience, provide ample basis for the status quo, however clumsily cobbled together it may be. (23) Because of the strong belief in the 'poisonous potential' (24) of other criminal misconduct, a judicial direction to guard against the risk of impermissible reasoning is, generally, considered insufficient. (25) Nonetheless, 'there are undoubtedly cases where the interests of justice require that evidence should be admitted even though the prosecution intends to rely on the criminal propensity of the accused'. (26) In fact, 'the clearest case of the use of propensity evidence to prove guilt is one involving a sexual offence'. (27) The majority in Hughes recognised why tendency evidence is...

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