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Week 10 Circumstantial and Character Evidence - Coggle Diagram
Week 10 Circumstantial and Character Evidence
2 CIRCUMSTANTIAL EVIDENCE
It was defined in
Festa v The Queen
(2001) 208 CLR 593, [8], by Chief Justice Gleeson as
‘evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred’.
nature of circumstantial evidence is best understood by considering a range of examples
2.1.1 Hodge’s Case
Hodge’s Case (1838) 168 ER 1136
but did not consist of any direct evidence of the murder. Instead, the prosecution presented evidence of circumstantial facts, and asked the court to infer that the accused was the murderer.
A woman was murdered. This is direct evidence, not reliant on an inference.
The murdered woman was robbed of a sum of money, but the precise amount is not known. We ask the court to infer that the robbery and the murder were part of the same crime.
The accused was acquainted with the victim. We ask the court to infer that the accused may have known the victim would be carrying a sum of money; or that in conversation with her he may have learned she was doing so.
The accused was seen in the vicinity of the victim prior to the offence. We ask the court to infer that the accused was in the right place, at the right time, to commit the offence.
The accused was seen burying money of approximately the same value as was stolen. We ask the court to infer that burying money represents a very unusual use of that money. We ask the court to infer that the money being buried was robbed from the victim.
, the accused in this case was eventually acquitted
Combining these inferences, we ask the court to infer that since the accused was seen in the vicinity of the victim at the time of the offence, and later found burying the money, which was stolen from her, he must have murdered her.
2.1.2 Plomp v The Queen
Plomp v The Queen (1963) 110 CLR 234
Again, let us look at the facts and inferences
Mrs Plomp was an experienced surf swimmer, and the surf conditions were benign. We ask the court to infer that it is unlikely that Mrs Plomp has simply been caught in the surf conditions and drowned.
Mr and Mrs Plomp were swimming together. We ask the court to infer that Mr Plomp had the opportunity to drown Mrs Plomp.
Mr Plomp was conducting an affair, and planned to marry the woman with whom he was doing so. We ask the court to infer that because Mr Plomp intended to marry the other woman, he needed to permanently end his marriage to Mrs Plomp.
Combining these inferences, we ask the court to infer that Mr Plomp went with his wife into the surf and then drowned her so that he could then marry his other woman.
See also, Chamberlain v The Queen (1984) 153 CLR 521.
2.2 A Common Misconception
In reality, almost all cases rely on at least some circumstantial evidence, and it is not at all unusual for circumstantial evidence to form the entire prosecution case
strongest and most compelling forms of evidence we have, are circumstantial
DNA evidence, for instance, is always circumstantial.
fingerprints are nothing more than circumstantial evidence
Real evidence is almost always circumstantial
3 THE USE OF CIRCUMSTANTIAL EVIDENCE
we considered the ways that evidence might be challenged: relevance, admissibility, weight and probative value. These factors continue to matter when dealing with circumstantial evidence.
relevance
As Gleeson CJ articulates, it is ‘relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding’: Goldsmith v Sandilands (2002) 76 ALJR 1024, 1025.
admissibility
All of the admissibility rules discussed in this unit apply to circumstantial evidence
circumstantial evidence will not be admitted if it is hearsay evidence, unless an exception applies
circumstantial evidence which is opinion evidence, or which was unlawfully obtained, will not be admitted
evidence must meet appropriate standards of reliability in the same manner as direct evidence
probative value.
The nature of circumstantial evidence, as we have already discussed, is that there is no immediate connection between the evidence itself, and a fact in issue.
Circumstantial evidence must be combined with other evidence to affect a fact in issue
There are three ways to conceptualise this.
3.2 Strands in a rope
On its own, an item of circumstantial evidence might not carry much weight at all; however, in combination with sufficient other pieces of circumstantial evidence, it may gain considerable strength.
R v Plomp
, outlined above, is a great example
3.3 The Silver Bullet
it is possible that a piece of circumstantial evidence might be so compelling that it resolves a case outright
DNA evidence, for instance, might do so for the prosecution
For the defence, a single piece of circumstantial evidence inconsistent with the prosecution’s case (say, an alibi) might be enough to collapse that prosecution case, resulting in an acquittal.
3.1 Links in a Chain
Each piece of circumstantial evidence is comprised of a fact and an inference, and these, arranged in a logical sequence, lead the court to our intended outcome.
considered sequentially as links in a chain, the items of circumstantial evidence combine to tell quite a compelling story.
4 THE SHEPHERD TEST
At what point does an alternative interpretation introduce reasonable doubt?
was answered definitively for the Australian common law by the High Court in Shepherd v The Queen (1990) 170 CLR 573.
Dawson J stated ‘It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence’.
In other words, if there are two interpretations of the facts which are reasonably open on the evidence, one of which suggests guilt and the other innocence, then the jury must acquit
5 EVIDENCE RELATING TO THE DEFENDANT
We turn now to evidence in criminal cases which relates specifically to the defendant, rather than to the events of the alleged crime.
special category of circumstantial evidence
There are three categories of such evidence
• Similar fact evidence, in which the prosecution alleges that a number of offences bear the ‘hallmark’ of the defendant;
6 SIMILAR FACT EVIDENCE
As a general principle, the prosecution is not permitted to allege that simply because a defendant has been convicted of certain offences in the past, they are more likely to be guilty of those same offences in the present.
There are good reasons for this rule. For one thing, our criminal justice system aims to be rehabilitative, and our sentencing principles include the principle of individual deterrence
under some circumstances criminal offences may bear such a distinctive hallmark that the inference becomes almost irresistible that the offences were conducted by the same person
R v Straffen
(1952) 2 QB 911
Straffen admitted being in the vicinity and even seeing the girl, but denied strangling her.
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6.1 The test in Hoch
Hoch v The Queen
(1988) 165 CLR 292
two or more complainants come forward at the same time, alleging substantially similar offences against them. Facts proven in relation to each case may become relevant to the other cases
. The test in Hoch is that if there is a reasonable possibility of concoction (not even a probability) then the similar fact evidence cannot be adduced.
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How similar is similar
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
• Propensity evidence, in which the prosecution argues that certain aspects of the defendant’s history make them unusually likely to have committed the offence; and
7 PROPENSITY EVIDENCE
7.1 The test in Pfennig
To be admissible, the probative force of the [propensity] evidence must clearly transcend the prejudicial effect of mere criminality or propensity: Pfennig v R (1995) 182 CLR 461
here was insufficient similarity between the two offences to allow for the successful admission of similar fact evidence. Instead, the prosecution sought to admit evidence of the second offence, to show that Pfennig had a propensity to commit attacks on young boys. With this final circumstantial evidence, the prosecution believed there were sufficient ‘strands in the rope’ to convict Pfennig.
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argue that the accused has certain personal characteristics which make them so much more likely to offend in a certain way, that the court should infer their guilt of the charged offences.
8 PROPENSITY EVIDENCE IN QUEENSLAND
in
Phillips v R
(2006) 225 CLR 303 the High Court overturned this decision, and
re-instated the Pfennig test
• Propensity evidence will be admissible only if its probative value exceeds its prejudicial effect. As per Pfennig, ‘in other words, that there is no reasonable view of the evidence consistent with innocence of the accused’.
9 RELATIONSHIP EVIDENCE
Propensity evidence must be carefully distinguished from what is known as relationship evidence.
Gipp v The Queen
(1998) 194 CLR 106
She did not object or react with immediate trauma, because she was trapped in a relationship where sexual abuse had become routine. Her conduct was inexplicable without an understanding of the relationship history, but perfectly understandable once that history was known.
matters relating to domestic violence
Evidence Act has quite explicitly clarified that relationship evidence is admissible. Section 132B(2)
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• Character evidence, which is asserted by the prosecution to rebut any Defence suggestions that the defendant is of good character.
10 CHARACTER EVIDENCE
Character evidence is led to show, in a general sense, ‘what sort of person’ the defendant is.
Generally speaking, at common law the prosecution is not entitled to raise character evidence, for obvious reasons. Evidence of poor character is almost inherently prejudicial, and will usually have very little actual probative value. On those grounds alone, it should rarely be admitted.
However, there is nothing to inhibit the defence from calling evidence to try to demonstrate that the accused is of good character.
Queensland, the use of character evidence has been modified by statute. Section 15(2) of the Evidence Act 1977 (Qld) requires the defendant to answer questions about their character under four circumstances:
• if the question seeks to directly prove an element of the offence;
• if the question is being asked by counsel for one of the defendant’s co-accused, and if the answer tends to exonerate the co-accused;
• if the defendant has opened up the issue of character, either by leading evidence intended to establish their own good character or intended to establish the bad character of a prosecution witness; or
• if the defendant has given evidence against their co-accused.
11 UNIFORM EVIDENCE ACT PROVISIONS
The statutory provisions make only minor changes to the common law.
Similar Fact Evidence
termed ‘
coincidence
’ evidence in the Uniform Evidence laws
The rule is that ‘evidence that 2 or more events occurred is not admissible to prove that a person did a particular act’ unless the court holds the view that the evidence will have ‘significant probative value.
The party seeking to call the evidence must also provide notice to the other party of their intention to do so. The provisions may be found in section 98 of the Evidence Act 1995 (Cth).
Propensity Evidence
provisions may be found in section 97 of the Evidence Act 1995 (Cth).
termed ‘
tendency
’ evidence in the Uniform Evidence laws
the evidence is only able to be adduced if notice is given, and if the court believed the evidence will have significant probative value
Character Evidence
Character evidence may not be admitted to demonstrate bad character unless there is first an attempt to admit evidence of good character
One interesting change is that if the defence seeks to admit evidence relating only to one aspect of the defendant’s character, the prosecution will be limited to adducing evidence of bad character relating to that aspect of the defendant’s character.
if the defence leads information relating just to the honesty of the defendant, this does not provide the prosecution with a general invitation to attack the defendant’s character – the prosecution will be limited to questions of the defendant’s honesty.
section 110 of the Evidence Act 1995 (Cth).
See also Evidence Act 1977 s 15 (2)