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Week 10: Circumstantial Evidence - Coggle Diagram
Week 10: Circumstantial Evidence
Evidence of a fact or facts, from which the court is asked to infer other facts.
Shepherd v The Queen
(1990) 170 CLR 573
The persistent view that a criminal defendant cannot be convicted on the basis of circumstantial evidence alone is entirely incorrect
Jurors may bring with them into the court some understanding of legal terms drawn from popular media. These pre conceptions may be quite inaccurate - such as a misconception that a defendant cannot be convicted on circumstantial evidence alone - but entrenched and therefore difficult to displace by judicial direction.
QLRC - A Review of Jury Directions
Basics: Relevance, Admissibility, Weight
Circumstantial evidence is assessed, like any other evidence, according to its relevance, admissibility and weight
Relevance:
Does the circumstantial evidence tend to prove/rationally affect, directly or indirectly, the assessment of the probability of a fact in issue? (
Goldman v Sandilands)
Admissibility:
The exclusionary rules considered previously all apply to circumstantial evidence
Weight:
Some circumstantial evidence will have very low weight on its own: some circumstantial evidence (DNA) has perhaps the most weight of all
The
Shepherd
Test
Circumstantial evidence requires the jury to consider not only the facts proven by the evidence, but also the inferences to be drawn from them; and whether those inferences, in turn, combine with the whole body of evidence to prove the charge beyond reasonable doubt.
The jury must be satisfied itself that there is no reasonable explanation of the facts given, consistent with the applicant's innocence:
Shepherd v The Queen
(1990) 170 CLR 573
If there is any plausible narrative which links together the facts without the defendant being guilty, the jury must acquit
Evidence Relating to the Defendant
A special category of circumstantial evidence asks the jury to draw inferences relating to the defendant themselves, rather than the acts or facts constituting the offence.
In common law these fall into three categories
Similar facts in defendant's previous offending
Evidence in relation to the previous offending of the defendant can be admitted if the facts in the offending are so similar that the inference is open that the offences were committed by the same person.
The focus is there being 'some hallmark or other peculiarity' about the offending 'so as to stamp the accused...not only with the [offence] charged but also with the earlier [offences]:
R v Straffen
[1952] 2 QB 911
It may not be going too far to say that [similar fact evidence] will be admissible only if it is so very relevant that to exclude it would be an affront to common sense:
Markby v The Queen
(1978) 140 CLR 108
The standard is set deliberately high, bearing in mind that the criminal standard of proof applies.
Nobody should be convicted as a result of mere coincidence.
Hoch
and Collusion
Once concern about similar fact evidence is the potential for concoction, if two witnesses collude and give remarkably similar accounts of the defendant's conduct.
In
Hoch
, the majority found that similar fact evidence should not be admitted if there was a reasonable suspicion of collusion, because that suspicion opened up 'another rational view of the evidence':
Hoch v The Queen
(1988) 165 CLR 292
Now, the
Evidence Act 1977
(Qld) s 132A states that this question must be left to the jury:
In a criminal proceeding, similar fact evidence...must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.
Evidence that the offender has a propensity to offend
Propensity evidence is evidence adduced for the purpose of demonstrating that the accused has a propensity for behaving in a manner consistent with the charged offence
Propensity evidence and similar fact evidence are so alike they are often share authorities, however they follow distinct lines of reasoning
Similar fact:
Offences A and B are so alike they simply must have been the performed by the same person- The defendant committed offence A
SO we can infer the defendant committed offence B
Propensity:
There is no evidence of a sufficiently similar previous crime
There is evidence that the defendant has a penchant for actions relevant tot the trial
SO we can infer the defendant committed the offence
Pfenning
17 Jan 1989: D known to have approached two young children suggesting they go for a drive with him. Initation declined.
18 Jan 1989 V, aged 10, goes missing from a riverside park. Never seen again. Evidence excludes drowning as a possibility.
D seen in the vicinity. By his own evidence, D and V came into contact. Dispute as to the nature of that contact.;
30 Dec 1989: D abducts and rapes H, aged 13. Offence occurred 30km from first offence.
Other than age & gender of victims, few similar facts.
Propensity evidence is not admissible is it only shows that the accused has a propensity to commit a crime or that he or she was the sort of person likely to commit the crime charged.
It is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition.
To be admissible, the probative force of the [propensity] evidence must clearly transcend the prejudicial effect of mere criminality or propensity:
Pfenning v R
(1995) 182 CLR 461
Propensity evidence must also meet the
Shepherd
test
It will sometimes be necessary to lead evidence which exposes the relationship between two people, where one is accused of offences against another.
This is particularly the case in DV relationships.
If such evidence is led to contextualise the relationship, and NOT to infer that the defendant committed the acts alleged, it is not strictly propensity evidence and, in Queensland, is admissible under statute.
Gipp v R
(1998) 194 CLR 103
Roach v The Queen [2011] HCA 12
Evidence Act 1977* (Qld) s 132B
Evidence of the offender's character generally
Character evidence is adduced to demonstrate the 'type of person' the defendant is.
The potential for character evidence to be prejudicial is obvious.
As a general rule:
Character evidence may not be led by prosecutors
However, once the defence seeks to lead evidence of
good
character, the prosecution may lead contrary evidence to discredit that good-character evidence.
Queensland Statutory Provisions
The
Evidence Act 1977
allows for evidence of bad character or previous offences to be adduced under one of four circumstances
If the evidence is actually being led to prove guilt of the offence, not to just show the defendant is 'the type'
If the evidence is being led by a co-accused, in order to exonerate the co-accused
If the defendant has tried to demonstrate their good character, and rebuttal is required.
If the evidence is being led by the co-accused, against whom the defendant has given evidence.
"Tendency' Evidence in the UEA
Parts 3.6 and 3.8 of the Uniform Evidence laws substantially restate the common law on these issues, but they change the names slightly and modify the tests
'Similar fact' evidence becomes 'coincidence' evidence and may only be used if it will have significant probative value.
'Propensity' evidence becomes 'tendency' evidence and may also only be used if it will have significant probative value.
Character evidence remains character evidence, with the rules virtually unchanged