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

improbability that different complainants will have spontaneously
invented broadly similar accusations against the same person. In
these and other situations the justification given for admitting
evidence of the other occasions is that the jury should be presented
with the whole picture, so that a choice can be made between an
inference of guilt and an acceptance of an implausible coincidence.
Founding on this rationalisation the appellant maintains that in the
third type of case the stark choice between a coincidental
independent fabrication by different complainants and a finding that
the complaints are true disappears once there is a possibility that the
complaints may not be spontaneous and independent but fabricated
in concert; and the disappearance of this choice carries away with it
the logic of making an exception to the general rule.
It follows, so the argument concludes, that the prosecution, having
the burden of showing that evidence which would generally be
excluded is in the particular case admissible, must establish that there
is no reasonably possible explanation of the similarity of the events
other than guilt or coincidence. This means that the exclusion of
conspiracy as a cause is a condition precedent to the admission of the
evidence, and since it is the function of the judge to rule on whether
the condition is satisfied he must investigate the facts, if necessary by
hearing evidence on a voire dire in the absence of the jury, and reach
a conclusion upon it, just as he does in other instances where the
satisfaction of a factual condition precedent is in dispute. 9
15.17 Lord Mustill decided that this conclusion cannot be accepted. The judge would,
in that case, have to decide the very question that the jury has to determine:
There are many reasons why witnesses may not be believed, and
conspiracy, or the suspicion of it, is only one of them; and it may of
course be alleged in cases which have nothing to do with evidence of
similar facts. Credibility is always for the jury, and I can see no reason
why the special feature that the testimony is adduced to support a
charge concerning acts said to have been done to the person with
whom the witness is suspected of conspiring, rather than to the
witness herself or himself, should affect this fundamental principle in
any way. 10
15.18 The argument in favour of the judge testing the reliability of the evidence before
admitting it may also be put in this way: if probative value must transcend
prejudicial effect, the court must not assume the truth of the evidence tendered,
because to do so means that the probative value is assumed not assessed. It
appeared that the Australian courts were interpreting Pfennig 11 and Hoch to this
effect, requiring the judge to pre-weigh the evidence, by a voir dire if necessary.
9 [1995] 2 AC 596, 619.
10 [1995] 2 AC 596, 620.
11 (1995) 127 ALR 99.
188