Evidence of Bad Character in Criminal ... - Law Commission

Option 4: the Australian common law test, namely whether there is any
reasonable explanation for the similar fact evidence other than that the
defendant is guilty 10
11.11 The fourth option which we canvassed was the Australian common law test, as
stated in Pfennig: 11 the evidence is inadmissible unless there is no rational view of
the evidence that is consistent with the innocence of the accused. The majority in
Pfennig said that
for propensity or similar fact evidence to be admissible the objective
improbability of its having some innocent explanation [must be] such
that there is no reasonable 12 view of it other than as supporting an
inference that the accused is guilty of the offence charged. 13
This test is simple, and it minimises the risk of wrongful convictions: as Roderick
Munday put it, “Practically speaking to admit similar fact evidence at all is to
determine that, barring a miracle, the defendant will be convicted”. 14
11.12 We identified three disadvantages of this option. We thought the test stricter than
necessary, and likely to lead to the exclusion of evidence which was probative and
of little prejudicial effect. We noted that, because it requires the judge to assess
the strength of the evidence, it would require the judge to apply the same test to
the evidence as the jury would have to apply, if it were admitted. Thirdly, we
feared that adoption of this test would lead to an increase in the need for voir
dires.
11.13 Only five respondents referred specifically to the Australian common law test.
Three of them preferred it. We take the point made by one respondent who said
that the Australian common law test is “clear, understandable, and appears likely
to ensure that justice is done to the defendant”, but, given the breadth of
evidence to which this test is to apply, we do not think it is the right one. The test
in Pfennig is not necessarily appropriate for bad character evidence of a different
kind from that in issue in Pfennig: bad character evidence is not always either so
probative, nor so prejudicial. We are still of the view expressed in the consultation
paper: we think wrongful acquittals would result from setting the test so high,
10 Paras 10.47 – 10.59 of the consultation paper.
11 (1995) 127 ALR 99. This authority has been superseded in those jurisdictions where the
Evidence Act 1995 (Cth) and the Evidence Act 1995 (New South Wales) apply.
12 The majority regarded “reasonable” and “rational” as synonymous in this context: ibid, at
p 114.
13 Pfennig (1995) 127 ALR 99, 113, per Mason CJ, Deane and Dawson JJ, summarising the
effect of Hoch (1988) 165 CLR 292, 294. Pfennig has since been applied in, eg, Robertson
(1997) 91 A Crim R 388: the defendant was charged with administering a stupefying drug
or thing and indecently assaulting the complainant. Accounts from others who claimed he
had drugged their drinks and possibly acted indecently towards them were permitted as
evidence against R on the basis that, once concoction was excluded, there was no rational
explanation other than that they supported an inference of guilt.
14 R Munday, “Similar Fact Evidence and the Risk of Contaminated Testimony” [1995] CLJ
522, 524.
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