Case Note: Hughes v The Queen [2017] HCA 20

In a recent decision on tendency evidence the Australian High Court has departed from the Victorian Supreme Court of Appeal’s (VSCA) stringent and narrow interpretation of section 97 of the Evidence Act 2008. This decision simplifies the evidentiary process for prosecutors to adduce tendency evidence. The High Court, by a 4:3 majority, criticised the approach adopted by VSCA in Velkoski by highlighting that the VSCA glossed the language of s 97 notwithstanding its own observation of Common law principles being superseded by the application of Part 3.6 of the Evidence Act 2008.

Similarity of Operative Features and Assessing Probative Value

The High Court rejected the part of the VSCA’s judgment that held that an interest in ‘particular victims and his willingness to act on that interest’ was only ‘rank propensity’. The majority held that such statements were not in line with the scheme of Part 3.6 of the Evidence Act 2008. Whilst highlighting the importance of s 101 (2) and its provided use to the accused against any unfairness that may work by admitting the tendency evidence, the majority said that:

... s 97(1) in terms provides for the admission of evidence of a person's tendency to have a particular state of mind. An adult's sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value.3

The majority also rejected the Velkoski analysis of the probative value of tendency evidence, which is based on similar features between the pieces of evidence to establish certain operative features such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. The majority held that:

[The Velkoski analysis] treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts, which evidence it.4

The majority explained that firstly, consideration must be given to the issue which the evidence is adduced to prove. The evaluation of the evidence can differ depending on the fact in issue. Evidence to prove the identity of a person who committed a known offence involves different considerations than evidence to prove that an offence occurred.5 In a case where prosecution are required to prove identity, the evidence of close similarity will become vital. However, less similarity will be required where the evidence is adduced to corroborate a witness’ testimony.

Significant Probative Value

The majority found two related matters in assessing whether the evidence to be adduced as tendency evidence has significant probative value. Firstly, it needs to be determined whether the evidence supports the tendency and secondly; whether the alleged tendency makes it more likely that the alleged facts occurred constituting an offence. These two matters emphasise that a clearly identified tendency and its comparison to facts in issue particularly relevant to the evaluation of the probative value of the proposed evidence. Although it is a more liberal approach to admit tendency evidence, the majority warned the judges to be more cautious before admitting tendency evidence in marginal cases. The recent decision of Bauer (a pseudonym) (No 2) was a good example of a marginal case which differed significantly from Hughes.

The majority stipulated that whilst the evidence of a particular pattern of conduct or modus operandi could have significant probative value, evidence of certain circumstances in which the offence was committed could also be assessed as having significant probative value. For example, evidence that the accused engaged in offending in circumstances where there is a high risk of detection could also have significant probative value when alleged with required credibility.

Conclusion

The Hughes decision has addressed the divergence in practice between Victoria and NSW on the admissibility of tendency evidence. The majority supported the more liberal approach of NSW to the admissibility of tendency evidence than has been the practice in Victoria. The High Court of Australia has stated that particular concepts of ‘underlying unity’, ‘pattern of conduct’ and ‘modus operandi’ and the criterion of ‘similarity’ protecting against the risk of an unfair trial, departed from the scheme of Part 3.6 as those terms are absent from the language of the legislation. The High Court concluded that the legislation should be interpreted with a more open textured approach whilst applying well-known principles of logic and human experience.