The Prejudice against Similar Fact Evidence
| Date | 01 March 2001 |
| DOI | 10.1177/136571270100500201 |
| Published date | 01 March 2001 |
| Subject Matter | Article |
The prejudice against
similar fact evidence*
By
Mirko
Bagaric and Kumar Amarasekara
I
Faculty
of
Law, Monash University
he admissibility of similar fact evidence is one of the most difficult issues
in the law of evidence. The Victorian Court of Appeal has noted that
evidence of an accused’s criminal conduct not the subject of specific
charges ‘has in recent years produced a number of practical problems and it
continues to occupy,
I
venture to say. a ticklish area of the criminal law’.’
The basic dilemma confronting the reception of similar fact evidence is that while
it constitutes extremely probative evidence, it is also thought to be capable of
engendering substantial unfavourable sentiment against the accused. The
development of the law concerning similar fact evidence has focused on these
two main considerations. The tension between them has generally been resolved
in favour of the supposed dangers inherent with such evidence. Thus. strict tests,
such as ‘another rational view test’,l have been developed to govern the
admissibility of similar fact evidence.
In this article, we argue that the supposed dangers of similar fact evidence
or
other problems associated with admitting such evidence in criminal proceedings
are either nonexistent
or
have been significantly exaggerated. In particular, it is
contended that the conceptual basis for the admissibility of similar fact evidence
has been misunderstood. In
all
cases, such evidence does not derive its relevance
from what is commonly termed ‘propensity reasoning’. Instead, the cogency of
similar fact evidence stems from the fact that it places the accused in a limited
class of persons who have a behavioural capacity to engage in the relevant conduct,
thereby increasing the probability that the accused committed the offence
charged.
We wish to thank the anonymous referees for their very insightful comments on an earlier
draft
of
this article.
1 Pearce. unreported, 4 January 2000.16
CCA
(Vic).
2 See
Pfennig
v
Ihe
Queen
(1995)
182
CLR
461 and the discussion below.
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THE PREJUDICE AGAINST SIMILAR FACT EVIDENCE
The lack of evidence
or
cogent arguments supporting the supposed problems
inherent in similar fact evidence suggests that the strict exclusionary rules which
are applicable to such evidence have evolved as a result of ‘judicial hunches’
trumping empirical fact.3 Given the high level
of
relevance of similar fact
evidence, we argue that there is no foundation for the strict rules governing
its admissibility and that too much evidence of prior criminal misconduct is
excluded in the trial process. This significantly impinges upon the capacity
of the criminal trial process to achieve its main objective-to achieve an
accurate assessment of guilt
or
innocence4 and thereby identify and punish
those who commit criminal offences.
Before turning to substantive matters we clarify some definitional issues and, by
way of background (as opposed to an extensive survey of the relevant law),5 provide
an outline of the existing law. Finally, the supposed dangers of such evidence are
examined. This includes a detailed discussion concerning the probative nature
of such evidence. In our concluding remarks, we make some brief reform proposals
concerning the admissibility of similar fact evidence and the jury instructions
that ought to accompany such evidence.
Definitions
The focus here is on evidence
which reveals that the accused has on previous occasions
engaged in similar conduct to that now alleged!
The High Court ofAustralia has stated
I
l3
4
5
6
For a convincing argument concerning the urgent need for reform of the law relating to character
evidence in general. see P. Murphy, ‘Character Evidence: The Search For Logic and Policy
Continues’
(1998) 2
E
&
P
71.
Murphy states, correctly in our view. that for principled reform to
occur in this area two basicquestions must be answered: ‘(1)what is the logical basis
for
character
evidence in each of several quite discrete cases? and
(2)
how, if at all. can the admission ofevidence
of character be reconciled with the underlying goals of the law of evidence?’ (at
72).
This article
seeks primarily to address this first issue in relation to the specific case of similar fact evidence.
We also make some general comments concerning the second issue.
In this regard we concur with Bentham. who stated that the ascertainment of guilt
or
innocence
is
the main object of the law of evidence:
J.
Bentham,
Rationale ofjudicial Evidence
(1827).
For
a discussion of the law on similar fact evidence. see
C.
Tapper, ‘The Probative Force of Similar
Fact Evidence’
(1992)
108
LQR
26;
P.
Mifield. ‘Similar Facts in the High Court ofAustralia’
(1990)
106
LQR
199:
P.K.
Waight and
C.R.
Williams.
Evidence: Commentary and
Materials,
5th edn (Law
Book Company: Sydney,
1998)
ch.
9;
A.
Ligertwood.
Australian Evidence,
4th edn (Butterworths:
Sydney) ch.
3:
J.
Clough,
‘Pfennig
v
The Queen:
A
Rational View of Propensity Evidence?’
(1999)
20
Adelaide
Law
Review
287;
S.
McNicol and
D.
Mortimer,
Evidence
(Butterworths: Sydney,
1996)
ch.
9.
This definition is similar to that adopted by Waight and Williams, above n.
5
at
422.
It should be
noted that the previous conduct need not necessarily be criminal. Further, although cases such
as
Thompson
v
R
[1918l
AC
221
have arguably applied the similar fact evidence rule to evidence
that places the accused in a bad light but is not similar to that now alleged. we do not believe
that such anomalous decisions detract from the view that the definition we have adopted accords
with conventional usage.
72
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PROOF
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