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

THE PROBLEMS IN DETAIL (I): EVIDENCE IN CHIEF
Lack of clarity in the “similar fact evidence” rules
4.2 It is hard for parties and courts to establish exactly what the law is in this area.
When the CLRC looked at it in 1972, they said it was “far the most difficult of all
the topics which we have discussed” 1 and, despite the decision in DPP v P, it is
still very problematic. This area of the law is ripe for codification which would
bring greater clarity, certainty and accessibility.
4.3 The test in the leading authority, DPP v P is too vague. The test was formulated
as follows:
… the essential feature of evidence which is to be admitted is that its
probative force … is sufficiently great to make it just to admit the
evidence, notwithstanding that it is prejudicial to the accused in
tending to show that he was guilty of another crime. 2
4.4 To state that the evidence is admissible when it is “just” to do so, does not settle
the question of how the probative value ought to relate to the prejudicial effect in
order for it to be admitted. 3 There are a number of possibilities. Some of them
are quantitative, weighing the probative value against the prejudicial effect by
reference to a quantitative benchmark such as on balance; or substantially 4 or
clearly outweighing or that it would be “an affront to common sense” 5 to exclude
the evidence. Another approach might be qualitative, that is to say placing a
burden on one party or the other and/or by being more specific about the way in
which the concept of doing justice feeds in to the decision. Thus there might be a
presumption of inclusion or exclusion. The test might require the interests of
justice to be served marginally or absolutely. For example it may be sufficient
that it may be in the interests of justice for the evidence to be admitted, or it may
be that the interests of justice must require the evidence to be admitted. In the
absence of such clarification different judges may be adopting completely
different approaches to the question whether it is just to admit the evidence
having regard to probative value and prejudice.
4.5 In a matter requiring the exercise of judgment in an individual case, it is
impossible for a test based on what is just to be so precise that there is no room
for argument in individual cases, but we do think that there is scope for more
guidance. For example, there is no indication of the factors that are relevant in
1 CLRC, Evidence Report (1972) para 70.
2 DPP v P [1991] 2 AC 447, 460E–F.
3 As Professor Birch says: “…the truth is that we do not know what we are looking for”. See
her commentary on Channing [1994] Crim LR 924, 926.
4 As in the Australian Evidence Act 1995 (Cth), s 101(2).
5 Boardman [1975] AC 421, 454A, per Lord Hailsham of St Marylebone, approving Lord
Simon of Glaisdale’s use of that phrase in Kilbourne [1973] AC 729, 759D.
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