Justices of the Australia High Court on Relevance & Sexual Propensity Evidence

In BBH v R, B76/2010, 2012 HCA 9 (High Court of Australia, 28 March 2012), Chief Justice French, dissenting, wrote (footnotes omitted):

On 25 January 2006 an indictment was presented against the applicant in the District Court of Queensland alleging a number of sexual offences against the Criminal Code (Q) (''the Code'') in relation to his daughter (''the complainant''). The complainant was born on 5 July 1983. The offences were alleged to have been committed at different times between 1987 and 1999. The indictment contained 12 counts. The first count charged that, between 3 July 1989 and 31 March 1999, the applicant had maintained an unlawful sexual relationship with the complainant contrary to s 229B of the Code. There were six counts of unlawful and indecent dealing when the complainant was under 14 and under 16 years of age. In four counts it was alleged that the applicant had sodomised the complainant. On another count it was alleged that he unlawfully procured the complainant to do an indecent act when the complainant was under 12 years of age.
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The application was concerned with the reception at trial of evidence, given by the applicant's youngest son, concerning an uncharged incident involving the applicant and the complainant, which the son said he had observed in 1994 or 1995. The son, who was 10 or 11 years of age at the time of the incident, said that while on a farm holiday with the applicant, the complainant and his older brother, he had observed the applicant and the complainant together at the caravan in which they were all staying. The complainant was undressed from the waist down and bending over. The applicant had his hand on her waist and his face close to her bottom. After making a statement to the police in 2005, the son volunteered to the applicant's partner that what he saw was consistent with the applicant looking for an ant bite or a bee sting. He gave evidence to that effect and said he saw nothing untoward about the incident. The complainant did not recall the incident, which did not follow the pattern of conduct of which she gave evidence. The applicant denied it ever occurred.
The son's evidence was admitted, over objection, as propensity evidence tending to show ''a guilty passion between the accused and the complainant.'' It should not have been admitted. It was equivocal. It could achieve relevance only by a process of reasoning conferring probative significance upon it by reference to direct evidence of the conduct it was adduced to prove. Its prejudicial effect was the invitation it offered to circular logic.
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The question of relevance

The evidence of the complainant's brother was admitted on the basis that it was propensity evidence. That term includes, but is not limited to, what has been called ''similar fact evidence'', ''relationship evidence'' and ''identity evidence''. In the context of sexual offences it extends to evidence said to demonstrate ''guilty passion'' or sexual interest or feeling towards another. In so saying, I agree with the cautionary remarks of Hayne J that the adoption of classificatory labels can obscure the proper identification of applicable principle. In this case the key principle is relevance. All evidence must pass the threshold test of relevance which is the necessary condition of admissibility. As was said in Smith v R :

"Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received."

Relevance is determined by reference to the content of the proposed evidence and the issues at trial, including the elements of the offences with which the accused is charged, issues about the facts constituting those elements and issues about facts relevant to facts in issue. There being no applicable statutory test of relevance under the Evidence Act 1977 (Q), the court is in the realm of the common law.

[James Bradley] Thayer wrote that ''[t]he law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience''.  According to Stephen's Digest, in a definition adopted in the eighth Australian edition of Cross on Evidence, ''relevant'' means that:

"[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."

Logical relevance is a precondition of admissibility. It is not itself a rule of law. It does not incorporate questions of sufficiency. As Tillers stated in his revision of Wigmore:

There is a basic distinction between the relevancy of evidence and its sufficiency. In the immortal words of Professor McCormick, ''A brick is not a wall.'' (citations omitted)

In the context of sexual offences, the logical relevance of propensity evidence said to demonstrate ''guilty passion'' was simply explained in the 1979 [James H.] Chadbourn revision of Wigmore's Evidence in Trials at Common Law:

The evidence as offered ... consists in conduct, and from this the first inference is to the then emotion, from this next to the emotion at the time charged, and from this to the act charged.

In this case the acts in question were those alleged in the substantive counts of sodomy and unlawful and indecent dealing and the acts, charged or uncharged, which might be relied upon to constitute the offence, alleged in count 1, of maintaining an unlawful relationship of a sexual nature contrary to s 229B(1).

Typically the cases about the admissibility of propensity evidence in relation to sexual offences have been decided on the premise that logical relevance has been established. The species of propensity evidence designated ''similar fact evidence'' has been admitted or excluded by reference to whether or not the probative force of the evidence outweighs its merely prejudicial effect. Evidence excluded by this criterion is excluded because of:

the concern of the law about the prejudicial effect of such evidence and ''the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused''. (citation omitted)

In Director of Public Prosecutions v Boardman , which is said to have marked a shift from admissibility conditioned upon accepted categories of uses of propensity evidence to admissibility conditioned upon cogency, Lord Wilberforce said:

The basic principle must be that the admission of similar fact evidence ... is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.

That passage was quoted with approval by Mason CJ, Wilson and Gaudron JJ in Hoch v R . Their Honours' reasons left open the possibility that a question of admissibility might collapse into a question of logical relevance if the tendered evidence lacked any probative force. Their Honours posited the case in which the existence of a rational view of similar fact evidence inconsistent with the guilt of the accused ''destroys the probative value of the evidence which is a condition precedent to its admissibility.'' In that limiting case, the evidence would be capable of proving nothing about any fact in issue. In Phillips v R the court observed that:

On one view, the problems presented by the tender of similar fact evidence are merely problems of relevance. On another view, evidence tendered as similar fact evidence must first be assessed for relevance, and, if that hurdle is overcome, must satisfy some additional test based on probative force. (citations omitted)

Although there was reference to the exclusionary rule for propensity evidence enunciated in Pfennig v R , the problem presented by the complainant's brother's evidence in this case was one of relevance. It was a limiting case of the kind adverted to in Hoch. To subject it to the Pfennigcalculus is to do no more in this case than to take a path that leads, in any event, to a conclusion of logical irrelevance.

The evidence was irrelevant because it was equivocal. As counsel for the applicant said, all the complainant's brother was able to give was a snapshot of an incident. The brother offered, in retrospect, an innocuous explanation for what had occurred. Whatever arguments might be constructed to support the proposition that, for reasons to do with the potential consequences of his testimony for his father, he was stating a theory in which he did not believe, the explanation he gave was rationally open. His evidence was not admitted as evidence of an uncharged act although, as noted earlier, the trial judge's directions may have left the jury with the belief that they could treat it as such. Despite being admitted as evidence of ''guilty passion'' it was not probative of a sexual act. In the circumstances, if it was not probative of a sexual act, it was not probative of guilty passion.

END OF EXTRACT FROM OPINION OF CJ FRENCH

Tillers:

French's bottom line conclusion that the evidence was irrelevant may or may not make sense. But the notion that evidence is irrelevant because it is "equivocal" does not make sense if one accepts that evidence is relevant (in the eyes of the law) if the evidence increases or decreases the probability of a legally-material fact to the slightest degree. But perhaps Chief Justice French was being just a bit careless with the language he(?) chose to use. Perhaps French's rationale really has to do with the notion of conditional relevance, which, as commonly explained in the United States, goes beyond the principle, or requirement, of relevance. That this is the explanation for French's conclusion about the irrelevance of the evidence is suggested by the following comment by French, a comment that buys into the "bootstrapping" objection (an objection now generally rejected in the United States): "The jury were effectively invited to engage in circular reasoning. The evidence itself could only be characterised as evidence of guilty passion if some additional element of conduct at the farm, not observed by the brother, was to be inferred. Alternatively, the jury were invited to characterise the incident as indicative of sexual interest. Neither of those inferences was open without reference to evidence which the brother's testimony was adduced to support. The only way in which the brother's evidence gained probative force was by a process of circular inference. It invited reasoning from conclusion to conclusion. That it indicated guilty passion could only be inferred by referring to the very evidence which it was adduced to support. The testimony should not have been admitted. It carried with it its own rational explanation consistent with the absence of any guilty passion."

See the separate opinion of Justice Gammow, also dissenting. Gammow discusses the harmful effects of the use of bad labels, or classifications, such as "relationship evidence" in sex crime cases. In the course of that opinion, Justice Gammow wrote (footnotes omited), "This court's decision in Pfennig, especially in the light of its earlier decisions in Markby v R , Sutton v R , Hoch v R and Harriman v R  and the decision of the House of Lords in R v Boardman , must be read as recognising that the supposed categories of exception [to the inadmissibility of similar fact evidence] are derived from a more fundamental principle: that the evidence of other discreditable conduct of an accused is admissible only if the evidence has particular probative value (or 'cogency' or 'particular relevance' or 'strength'). And Pfennig requires that this more fundamental principle be applied to determine whether evidence of an accused's other conduct may be admitted. That is, Pfennig decided that other discreditable conduct by the accused is admissible -- has sufficient probative value -- only where the evidence, if accepted, bears no reasonable explanation other than the inculpation of the accused in the offence charged. This, not whether the evidence falls into some supposed category of subject matter, is the question for decision."

The opinions of several Justice in the majority on the question of the relevance of the admitted evidence differed markedly from French's opinion. For example, Justice Heydon wrote:

In assessing questions of relevance in relation to admissibility, it is not for judges to speculate about possible constructions of the evidence which are adverse to the interests of the tendering party. It is necessary to assess relevance by taking the proposed evidence at the highest level it can reasonably be put at from the tendering party's point of view. It is not correct for judges in jury trials to assess the probative value of the evidence for themselves and reject it as irrelevant if they identify aspects of it which may make it unconvincing or not probative in the fashion which the tendering party alleges. The possibility or likelihood, even, that evidence is fabricated does not make it irrelevant. When it is said that judges in jury trials in determining the admissibility of evidence have regard to the weight of the evidence, what is meant is not that they determine for themselves whether it is to be or may be believed, but that they determine what weight it would have in the case as a whole if it were believed.

Justice Bell, who was also in the majority, wrote (footnotes omitted):

The suggested character of the camping incident as equivocal is pertinent to the determination of admissibility under the Pfennig test, but it does not deprive the evidence of its relevance. It is the distinction drawn by Hayne J with respect to the evidence of the purchase of the underwear in HML. All evidence having anyprobative value is admissible, subject to any rule of exclusion. W's evidence was tendered as an item of circumstantial evidence to prove the applicant's sexual interest in the complainant. Its capacity to prove that fact is not to be assessed without regard to the other evidence in the trial. Proof of what W saw was capable of supporting an inference that the applicant was, on that occasion, indecently dealing with the complainant.

W's evidence was relevant. However, because it was tendered as evidence of sexual misconduct for the purpose of proving propensity, the trial judge was required to exclude it unless she was satisfied that it was not susceptible of a rational explanation consistent with the applicant's innocence. Pfennig was a wholly circumstantial case in which the propensity evidence was not disputed. The application of the ''no rational view'' test, formulated in the Pfennig context, to the admission of disputed propensity evidence to prove motive or sexual interest in the prosecution of sexual offences, is explained in Phillips v R and HML. The propensity evidence must be viewed in the context of the prosecution case, upon the assumptions that the propensity evidence would be accepted as true and that the prosecution case (as revealed in the evidence or in the statements or depositions of witnesses to be called) may be accepted by the jury. The trial judge is not required to conclude that the propensity evidence standing alone would establish guilt of the offence or offences with which the accused is charged. If, viewed in this way and upon these assumptions, there exists a reasonable view of the propensity evidence that is consistent with the accused's innocence, the evidence must be excluded.

The only innocent explanation for a father making a close visual examination of the naked bottom of his pubescent or pre-pubescent daughter that was suggested on the hearing of the application was the explanation offered by W. To the possibilities of looking for a bee sting or an ant bite may be added other ''quasi-medical'' investigations, such as inspecting a rash or the like. It is convenient to refer compendiously to these as ''the sting or bite explanation''. The applicant placed considerable emphasis on the circumstance that W had himself volunteered the sting or bite explanation for what he had seen. The circumstance that W offered an innocent explanation on an occasion when he was challenged to explain why he was ''doing this to [his] father'' does not make the suggestion a rational explanation for what it was that he saw. W's account of the incident does not suggest that, at the time of the incident, it occurred to him that he had chanced upon his father examining his sister to detect a sting or a bite. W turned around and left the campsite without making his presence known. In the result, he did not collect the pocket knife that had been his object in returning to the campsite. W did not ask the complainant later that day or in the days thereafter about what misadventure had led to their father inspecting her bottom. The inference from W's conduct is that his reticence reflected his instinctive understanding that he was witnessing something that was not intended for his eyes.

The reasonableness of the inferences to be drawn from the camping incident involves the assessment of probabilities. It is an assessment that must take into account the other evidence in the prosecution case. In the light of the whole of the evidence, a possible explanation may cease to be a rational one. The circumstance that the complainant alleges that the applicant sexually molested her and that incidents of abuse occurred on camping trips is relevant to the assessment of whether the sting or bite explanation is a rational one for what W saw. This is not to engage in unacceptable circular reasoning. It may involve, as Crennan and Kiefel JJ explain, a legitimate consideration of the improbability of events occurring by coincidence.

In the ordinary course of events, the occasions calling for a father to examine his 11 or 12-year-old daughter's naked bottom are likely to be few. When they occur, they are likely to be memorable to the father and the daughter. In considering whether the sting or bite explanation is a reasonable view of the camping incident, it is appropriate to have regard to the circumstance that neither the complainant nor the applicant have any recall of such an event. A reasonable explanation for the complainant's lack of recall of an occasion on the camping trip when the applicant inspected her naked bottom is that she was accustomed to being indecently dealt with by him and, until she was 13 years old, individual incidents of abuse were a blur. On the other hand, it is improbable, had there been an occasion when the complainant sought her father's assistance following a sting or a bite to her bottom, that the fact of being stung or bitten would not have impressed itself on her memory. A further improbability is that the occasion calling for the inspection of the complainant's bottom should occur at a time when all of the other members of the party were believed to be absent.

The admissibility of W's evidence fell to be determined after the complainant's evidence was completed. The question of whether there was a rational view of the camping incident consistent with the applicant's innocence did not depend upon the applicant advancing an innocent explanation for the incident. However, it was apparent from the cross-examination that the occurrence of the incident was in issue. In determining whether the sting or bite explanation was a rational one, it was appropriate to consider the improbability of that explanation being true, in circumstances in which it appeared the applicant had no recall of such an event.

In the context of the prosecution case as revealed by the complainant's evidence (and foreshadowed in the statements of witnesses to be called), the sting or bite explanation was not a rational view of what W had witnessed.

The complainant gave direct evidence of the acts that were the subject of the charges. The jury might have assessed her evidence as credible but considered as a reasonable possibility that, in the emotional atmosphere of her parents' separation, the complainant had sided with her mother and made up her account of abuse. In such an event, proof of the camping incident was capable of resolving that doubt in favour of a conclusion of the applicant's guilt.  W's evidence was rightly admitted. Proof of the applicant's unnatural sexual interest in the complainant did not support acceptance of the reliability of the complainant's account of the acts particularised in each count. Appropriate directions respecting the need to consider each count separately were given. The discrimination of the verdicts shows that those directions were understood.

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Tillers: Debates and disagreements about the meaning of "relevance" never end!

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