3.1 The uniform Evidence Acts made significant modifications to existing common law evidentiary principles. While the specific provisions of the Acts are discussed in detail in subsequent chapters, certain aspects of the policy framework of the Acts warrant a thematic analysis.

3.2 Submissions received and consultations conducted following the release of IP 28[1] and DP 69[2] reveal a significant degree of confusion around certain concepts used in the uniform Evidence Acts. It is hoped that the following analysis will help to clarify the approach adopted in the Acts in relation to: evidence of tendency, coincidence, credibility and character; and the concepts of probative value, unfair prejudice and unfairness.

3.3 It also became clear during the course of the Inquiry that some aspects of the uniform Evidence Acts, and some specific areas of evidence law, require targeted educational programs. The areas of greatest need, as identified in this chapter and discussed in greater detail in the following chapters, include the policy underlying the uniform Evidence Acts’ approach to admissibility of evidence, controlling improper questions in cross-examination, the admissibility of expert opinion evidence, expert evidence of a child’s cognitive and behavioural development and the nature and consequences of sexual assault.

Evidence of tendency, coincidence, credibility and character

3.4 Parts 3.6 to 3.8 of the uniform Evidence Acts contain provisions to control the admissibility of evidence of past conduct and character which is relevant to the facts in issue or to the credibility of witnesses.

3.5 Part 3.6 (ss 94–101) deals with evidence of:

  • character, reputation, conduct or tendency which is relevant to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind (s 97); and

  • two or more related events which are relevant because the improbability of the events occurring coincidentally is relevant to prove that a person did a particular act or had a particular state of mind (s 98).

3.6 The act or state of mind must be a fact in issue at the trial. At common law, such evidence is referred to as ‘propensity’ and/or ‘similar fact’ evidence and includes evidence of conduct from which the nature of a relationship may be demonstrated.

3.7 Part 3.7 (ss 102–108) deals with evidence which is relevant only to the credibility of a witness. Part 3.8 (ss 109–112) relates to evidence about the character of accused persons which may be relevant both to the facts in issue and to the credibility of the accused.

3.8 Parts 3.6 and 3.7 apply in both civil and criminal proceedings, yet most of the issues raised to date concern the operation of those provisions in criminal proceedings. However, the fact that the provisions operate in both civil and criminal proceedings must be borne in mind when considering the issues and possible solutions discussed in Chapters 11 and 12. In particular, where a problem is unique to criminal proceedings, it may require a solution confined to such proceedings.

Lessons from psychological research

3.9 The law has always been concerned with the potential to overestimate the value of, and to be improperly influenced by, evidence of tendency, coincidence, credibility and character. The approach of the law is supported to a considerable extent by a substantial body of psychological research, described in some detail in the Interim Report of the previous Evidence inquiry, ALRC 26.[3]

3.10 The common law generally assumes that the character of a person is indivisible—in other words, a person with bad character traits is likely to be a bad person generally and a person with good character traits is likely to be a good person generally. Underlying this assumption is the belief that people act consistently according to the character traits they exhibit, whatever the circumstances. Psychological research confirms that such assumptions are commonly made, although incorrectly, as in reality a person’s behaviour will vary depending on the context. This is of particular relevance to the assumptions underpinning the common law approach to credibility evidence.

3.11 Originally, psychological theory assumed that the mental organisation of each individual embodied a predisposition towards either truthful or untruthful behaviour. It is now accepted that moral disposition is not so highly integrated as to cause consistency of behaviour in different situations. The fact that someone has a violent personality does not mean that they also have a dishonest personality. Evidence of previous convictions will generally have little probative value and may mislead on the issue of credibility unless it involves some element of dishonesty. Even then, a person may be dishonest in some circumstances and not others—for example, a person may lie only to protect his or her friends; the Machiavellian individual will lie and cheat only where it is feasible and to that person’s advantage.

3.12 Psychological research has demonstrated that this process of attributing actions in others to stable personality dispositions is common and carries with it the danger of overestimating the probative value of such evidence.[4] This is exacerbated by what is known as the ‘halo effect’: the phenomenon that one outstanding good or bad quality will tend to colour all judgments about that person. This, of course, may result in bias against an accused person.[5] These processes are particularly troubling because the psychological research has demonstrated that evidence of character or evidence relevant to character generally has a low probative value. The law, however, must deal with such evidence.

3.13 Psychological literature has also confirmed and explained the risk of unfair prejudice flowing from evidence indicating bad character. In addition to the ‘halo effect’, there operates a mechanism described as the ‘regret matrix’. In most trials, absolute certainty is not possible. The responsible fact finder will be concerned about making a wrong decision. The ‘regret matrix’ operates in a trial context so that a fact finder will be less concerned about making a wrong decision where he or she believes that the defendant has been guilty of other misconduct justifying punishment for which the defendant has not been convicted. Similarly, concern about wrongly convicting an accused will be less if it is known that the person has prior convictions. The cost of an additional conviction which may be incorrect will be seen as less than if the conviction were an accused’s first.[6]

3.14 In sum, the psychological research[7] shows that:

  • behaviour tends to be highly dependent on situational factors and not, as previously postulated, on personality traits. Thus, the ability to predict behaviour from past behaviour depends on the similarity of the situations (‘low cross-situational consistency of behaviour’);

  • people tend to attribute the behaviour of others to enduring personality traits and underestimate the role of situational factors in determining behaviour in any given situation (‘fundamental attribution error’);

  • people tend to infer, from limited knowledge of a person, general personality traits which thereafter colour their perception of that person’s behaviour (‘the halo and reverse halo effects’);

  • jurors will be less reluctant to convict an accused if they are informed of an accused’s previous misconduct and/or convictions, because they feel either that the gravity of their decision is lessened or that there is some basis for punishment, even if they are not convinced the accused committed the crime charged (‘the regret matrix’).

3.15 In a discussion in Pfennig v The Queen,[8] McHugh J identified similar issues in support of the exclusion of evidence of this kind, commenting additionally that such evidence creates ‘undue suspicion’ and ‘undermines the presumption of innocence’.[9] McHugh J also commented that:

Common assumptions about improbability of sequences are often wrong, and when the accused is associated with a sequence of deaths, injuries or losses, the jury may too readily infer that the association ‘is unlikely to be innocent’.[10]

3.16 His Honour also drew attention to the potential practical disadvantages of receiving evidence of other misconduct, in particular to its implications for the length and cost of trials.[11]

3.17 In a discussion of the potential prejudicial effects of similar fact (coincidence) evidence, Professor Williams refers to the problem of a jury giving undue weight to the evidence, and reasoning that the accused deserves to be punished. He also notes that there are other forms of prejudice or potential unfairness, such as misdirecting the focus of the jury to the question of whether the disputed similar facts have been proved. This carries the attendant risk that, if the jury is so satisfied, it may precipitately reach the conclusion that the offence is proven. He also refers to the danger that, where an accused is charged with a number of counts, the evidence of which is admissible in respect of the others, a jury may reason that the accused must be guilty of some of them.[12]

3.18 The prejudicial effect of evidence of previous misconduct has been confirmed in research conducted by the Law Commission of England and Wales involving magistrates and mock juries.[13] In relation to mock juries it was found, among other things, that information of a previous conviction for indecent assault on a child can be particularly prejudicial whatever the offence charged and will have a significant impact on the jurors’ perception of the defendant’s credibility as a witness.[14] In relation to magistrates, the study concluded that:

In general the results indicate that information about previous conviction is likely to affect magistrates’ decisions despite their awareness of the dangers and their efforts to avoid bias. These findings did not offer confidence that the rules on admitting previous convictions can be safely relaxed for magistrates anymore than for juries.[15]

Psychological research since the previous Evidence inquiry

3.19 A review of psychological research since the previous Evidence inquiry and current psychology teaching confirms and, in some instances, strengthens the basis for the analysis in the ALRC Reports. Psychology texts[16] continue to refer to the studies used in the ALRC Reports[17] which contradicted classical ‘trait theory’. Findings indicate that the correlation between individual behaviour in different situations is in fact quite low.

3.20 Trait theory has not been wholly discredited. Personality psychologists argue that by aggregating behaviours across situations over time, one can discern consistent personality traits which may be used to predict an aggregate of future behaviour.[18] However, this research does not challenge the basic proposition that the behaviour of an individual on one occasion has a very low correlation to his or her behaviour on another occasion in a different situation.

3.21 Further research has sought to quantify the difference between the actual cross-situational consistency of behaviour and the general belief as to such consistency in others. Kunda and Nisbett found that participants in their study dramatically overestimated the consistency of trait related behaviour, stating:

People are enormously more confident of the expected nature of a person’s social behaviour, given knowledge of the nature of their behaviour on one occasion, than reality affords them any right to be.[19]

3.22 Wilson and Brekke have taken this research one step further, examining the processes by which attribution and the halo effect occur and the processes’ implications for attempts to correct for these biases.[20] They argue that people will only be able to make a successful correction for bias where they are: aware of the bias, motivated to correct it, aware of the magnitude of the bias, and able to adjust their response. They argue that

it is difficult to satisfy these conditions, in part because of fundamental properties of human cognition: people are unaware of many of their cognitive processes, mental contamination often has no observable ‘symptoms’, and people have limited control over their cognitive processes. These facts alone are cause for considerable pessimism about people’s ability to avoid unwanted judgments.[21]

3.23 ‘Law and psychology’ has now become a field of research in its own right, with some authors directing their research specifically to jury scenarios and the prejudicial effect of character evidence.[22] Research into the effectiveness of judicial directions to juries, particularly with regards to evidence of prior criminal history, has shown that directions to disregard evidence or to use it for only a limited purpose may not always be complied with.[23] In some instances such directions have the opposite effect to that intended.[24] The directions are likely to be more effective if the jurors accept the legitimacy of the directions[25] or believe it is not fair to consider the evidence.[26] This research accords with the conclusions of Wilson and Brekke that there must be recognition of biases and motivation to avoid them.

3.24 In ALRC 26, the ALRC stated:

The research confirms the need to maintain strict controls on evidence of character or conduct and for such evidence to be admitted only in exceptional circumstances. It demonstrates, however, that the emphasis of the law should be changed. For the sake of accurate fact-finding, fairness and the saving of time and cost, the law should maximise the probative value of the evidence it receives by generally limiting it to evidence of conduct occurring in circumstances similar to those in question. Only for special policy reasons should other evidence of character or conduct be received.[27]

3.25 It should also be borne in mind that the prejudicial effects of such evidence operate at all stages in which the evidence is considered—from consideration of admissibility of the evidence by the judge through to the assessment of the evidence by the finder of fact. As regards the latter, it can operate to affect the assessment of the credibility of the particular witnesses, the reliability of their evidence, the weight to be given to the evidence and the judgment as to whether the evidence has established the facts in question.

Probative value, unfair prejudice and unfairness

3.26 The uniform Evidence Acts require the judge to assess the degree of probative value of particular types of evidence in order to determine the question of admissibility. These include evidence going to tendency or coincidence and evidence adduced in cross-examination as to credibility.[28] In addition, the judge will sometimes be required to balance the probative value of a piece of evidence against the danger of unfair prejudice to the defendant.[29] Other provisions require the judge to determine whether taking a particular course of action is ‘unfair’ or ‘unfairly prejudicial’ to the parties involved.[30]

3.27 The same terms appear in various sections throughout the Acts. ‘Probative value’ appears in ss 97, 98, 101, 103, 105,[31] 108, 135, 136, 137, 138, and 190. ‘Unfair prejudice’ appears in ss 53, 135, 136 and 137. The term ‘prejudicial’ appears in s 101. The term ‘unfair’ appears in ss 90 and 192.

3.28 Concerns have been raised as to the precise meaning of these concepts and the degree to which there has been or should be consistency in the interpretation of these terms in the various sections in which they appear throughout the Acts.

Consistency of terms throughout the Acts

3.29 Clearly the legislative intent was that there be some degree of consistency in the use of these terms. In R v BD, Hunt CJ at CL said:

The meaning given to each of those phrases must logically be the same in each section—whether or not a weighing exercise is contemplated.[32]

3.30 In R v Ellis, Spigelman CJ said:

It is noteworthy that the Act provides a definition of ‘probative value’ Although the definition could well have been the same as at common law, the fact that such a term was defined at all suggests an intention to ensure consistency for purposes of the Evidence Act for the words, which appear in a number of sections. This suggests that the Act, even if substantially based on the common law, was intended to operate in accordance with its own terms.[33]

3.31 It is also apparent that the factors to be taken into account in determining whether a piece of evidence has the requisite degree of probative value or results in a degree of unfair prejudice will vary depending on the type of evidence and the context in which it is sought to be adduced. Some academic commentators describe probative value as ‘a floating standard’.[34] This is particularly evident with regard to evidence of credibility, tendency and coincidence, as evidence of this kind tends to bolster the strength of other evidence rather than being associated directly with a fact in issue. These concepts will be dealt with in more detail in the relevant chapters of this Report.

Measuring probative value: ‘significant’ and ‘substantial’

3.32 Different categories of evidence require different degrees of probative value in order to be admissible. For example, tendency and coincidence evidence is required to have ‘significant probative value’,[35] whereas credibility evidence adduced in cross-examination must have ‘substantial probative value’.[36] The uniform Evidence Acts provide no guidance as to the difference between ‘significant’ and ‘substantial’.

3.33 There appears to be consensus that ‘substantial probative value’ imports a more exacting standard than ‘significant probative value’. Hunt CJ at CL said in R v Lockyer that ‘“significant” probative value must mean something more than mere relevance but something less than a “substantial” degree of relevance’.[37] His Honour felt that ‘significant’ in this context meant ‘important’ or ‘of consequence’. He also felt that an assessment of the significance of the probative value of a piece of evidence would depend on both the nature of the fact in issue to which it was relevant and its importance in establishing that fact.[38]

3.34 It was observed by Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd that ‘more is required than mere statutory relevance’ in order to satisfy the test of ‘significant probative value’.[39]

3.35 As noted above, probative value must be assessed in its factual and legal context. While it is clear from authorities that ‘substantial’ probative value is a more exacting standard, the factors that will go to determining whether a piece of evidence reaches the requisite standard vary between the different types of evidence, and hence it is of little use to attempt a detailed comparison of the two standards.

Unfair prejudice

3.36 As with probative value, the concept of unfair prejudice is used consistently between the provisions in the uniform Evidence Acts,[40] but the factors to be taken into account in determining unfair prejudice will vary according to the factual and legal context in which the evidence is sought to be adduced. Chapter 16 discusses this concept in detail.

‘Unfair’ and ‘unfair prejudice’

3.37 The word ‘unfair’, as distinct from ‘unfair prejudice’, appears in ss 90(b) and 192(2)(b) of the uniform Evidence Acts. Section 90(b) provides the court with the power to exclude evidence of an admission adduced by the prosecution in criminal trials where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant. Section 192(2)(b) provides that when granting leave or making a direction, a court must take into account the extent to which doing so might be unfair to a party or witness.

3.38 The High Court in R v Swaffield said that the concept of unfairness ‘necessarily lacks precision’, but that:

Unfairness relates to the right of the accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.[41]

3.39 While the High Court was dealing with the common law, the majority indicated that its articulation of the fairness discretion at common law reflected the approach adopted in the uniform Evidence Acts.[42] Indeed, New South Wales courts have been influenced by R v Swaffield in the application of the uniform Evidence Act provisions.[43]

3.40 The High Court’s comments in R v Swaffield indicate that the notion of ‘unfairness’, both at common law and under the uniform Evidence Acts, is broader than that of ‘unfair prejudice’. As discussed in Chapter 16, the statutory concept of unfair prejudice relates primarily to the misuse of evidence by the tribunal of fact (for example, attributing more weight than it should to evidence due to an emotional reaction to the evidence).

3.41 There has been some uncertainty as to whether unfair prejudice can arise from procedural considerations (such as the inability to cross-examine on hearsay evidence). The Commissions are of the view that unfair prejudice can arise from procedural considerations only where this affects the ability of the tribunal of fact to assess rationally the weight of the evidence. By contrast, ‘unfairness’ may arise solely from procedural considerations. However, not surprisingly, the authorities indicate that there is some overlap in the use of the terms.

3.42 In R v Duncan and Perre, Wood CJ at CL held that the issues arising in relation to ss 135 and 137 in the context of that particular case were essentially the same as those arising under s 192(2)(b).[44] The defendant argued on appeal that the overall weight and reliability of the statement of a particular witness was such that either leave should have been refused to the Crown to cross-examine its own witness (pursuant to s 38) or the witness’ statement should have been excluded pursuant to ss 135 or 137. His Honour held that there was no unfairness or unfair prejudice in this case as the jury had been given ample directions and the defence had been given the opportunity to cross-examine the witness on his prior statement.[45]

3.43 A similar situation arose in R v Fowler,[46] where the Crown sought to cross-examine a witness pursuant to s 38. One of the grounds of appeal was that the trial judge, who had refused to exclude the evidence under s 137, had failed to consider s 192(b) fairness when deciding whether to grant leave under s 38. On appeal, the New South Wales Court of Criminal Appeal held that, although the trial judge had not considered s 192, there was no miscarriage of justice. The court held that the trial judge could not have found the evidence unfair under s 192 where she had refused to exclude it under s 137.[47]

Probative value and unfair prejudice

3.44 It is clear from the conflict in the authorities that there is uncertainty as to the meanings of the terms ‘probative value’ and ‘unfair prejudice’. It has been suggested that the difficulty lies in the fact that the concepts are insufficiently distinct.[48] This is because it is difficult to measure prejudice without reference to the degree of probative value. As McHugh J said in Pfennig,‘in many cases the probative value either creates or reinforces the prejudicial effect of the evidence’.[49] Hence, it is apparent that the concepts are interdependent. Difficulties of interpretation arise when attempts are made to treat them as completely distinct.

3.45 Another factor accounting for inconsistency in the interpretation of the relevant terms is that some judges and practitioners are still in the process of adjusting to the uniform Evidence Acts. When an evidentiary issue arises, there is a tendency on the part of some to approach the rules of evidence as they would have under the common law.

3.46 In order to understand the terms as they are used in the Acts, it is essential to recognise the important policy changes engendered by the Acts. Analysis of the case law dealing with these concepts reveals that at least some of the confusion, particularly in regard to unfair prejudice, is due to the fact that courts and practitioners have not yet come to terms with the fact that some types of evidence which would previously have been inadmissible under the common law are now admissible under the Acts.

3.47 This is particularly evident in relation to hearsay evidence and the inability to cross-examine. Judges and practitioners trained under the common law may view such evidence as unfairly prejudicial due to the fact that it was previously inadmissible, and hence try to interpret the Acts’ provisions in accordance with common law notions. McHugh J said in Papakosmas:

Some recent decisions suggest that the term ‘unfair prejudice’ may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act 1995 … I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of ‘prejudice’ in a context of rejecting evidence for discretionary reasons. [50]

3.48 His Honour went on to note:

Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility.[51]

3.49 These issues are considered further in Chapter 16. It is hoped that the commentary in this Report will help to achieve clarity and consistency in the use of the terms probative value, unfairness and unfair prejudice. Further, as is discussed in detail below, education programs for the judiciary and the profession focusing on the policy underpinning the Acts will facilitate a more consistent approach.

The need for targeted educational programs

Facilitating an understanding of the uniform Evidence Acts

3.50 Consultations and submissions to date have indicated that, while most judicial officers and practitioners in uniform Evidence Acts jurisdictions are familiar with the Acts’ provisions, more needs to be done to familiarise those using the Acts with the underlying policy of the legislation. This is particularly important in relation to the approach to issues of admissibility under Chapter 3 of the Acts—specifically the use of ss 135–137 (discretionary and mandatory exclusions).

3.51 ALRC 38 outlined the approach to admissibility under the uniform Evidence Acts:

As under the existing law, the admissibility of a piece of evidence should be determined by first asking whether it is relevant. If the answer to that question is in the negative it should be excluded. If the answer is in the affirmative, the evidence will be admissible unless an exclusionary rule operates to exclude it or an exclusionary discretion is exercised. It will be for the party against whom it is led to direct the court’s attention to the rules set out in the legislation justifying exclusion of the evidence if it wishes to have the evidence excluded.[52]

3.52 This approach to admissibility is illustrated clearly by a ‘grid’ found in the Introductory Note to Chapter 3 of the Acts. The questions and sequence set out in the grid (which mirrors the placement of Parts in the Chapter), provides an analytical guide to the admissibility of a particular piece of evidence. In other words, the ‘grid’ explains the reasoning process that should be employed when a question of admissibility arises.

3.53 The uniform Evidence Acts’ relaxation of common law rules of admissibility, to accord with the primary objective of enabling ‘the parties to produce the probative evidence that is available to them’,[53] places greater emphasis on the use of the discretionary and mandatory exclusions contained in ss 135–137. As discussed throughout this Report, submissions and consultations suggest that judicial officers are often reluctant to take a robust approach to the use of the discretionary and mandatory exclusions contained in ss 135–137.

3.54 Some judicial officers in trial courts expressed concern that reliance on ss 135–137 to exclude or limit the use of otherwise admissible evidence could result in the decision being overturned on appeal.[54] Further, it was said that, rather than identifying the precise grounds upon which evidence should be excluded, counsel often seek exclusion or limitation pursuant to ss 135, 136 or 137, adopting a ‘package approach’ which is of little assistance to the decision-maker.[55]

3.55 It was proposed in DP 69 that educational programs should be implemented which focus on the policy underlying the uniform Evidence Acts’ approach to admissibility of evidence. For judicial officers, this could be coordinated by the National Judicial College, the Judicial College of Victoria and the Judicial Commission of New South Wales. The state and territory law societies and bar associations should offer continuing legal education to their members in this regard.

3.56 The Criminal Bar Association of Victoria suggests that the desirability of such programs is ‘self-evident’.[56] The proposal is also supported by a number of other organisations including the Victoria Police,[57] the Law Society of New South Wales,[58] the Intellectual Disability Rights Service,[59] the Australian Securities and Investment Commission,[60] the Australian Federal Police,[61] the Commonwealth Director of Public Prosecutions[62] and the Office of the Director of Public Prosecutions (NSW).[63]

3.57 In addition to education programs focusing on the approach in the uniform Evidence Acts to the admissibility of evidence, the prevalence in our courts of cases involving crimes against the person, and in particular sexual assault, raises other areas where a need for education of the judiciary and the profession has been identified. The primary areas of concern brought to the attention of the Commissions during the course of this Inquiry include:

  •  the identification of vulnerable witnesses and the use of the uniform Evidence Acts to constrain the use of improper questions in cross-examination of such witnesses, and of witnesses generally. This is discussed in detail in Chapter 5;
  • procedural and substantive issues concerning the admissibility of expert opinion evidence. This is discussed in detail in Chapter 9;
  • education about issues relating to the cognitive and behavioural development of children. The focus of such programs should be on the implications of such development on the reliability of the evidence of child witnesses. This is discussed in detail in Chapters 9 and 18;
  • the nature of sexual assault. In particular, it is clear that many members of the judiciary and the legal profession have an inadequate understanding of the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault. This is discussed in detail in Chapter 18.

Recommendation 3–1 The National Judicial College, the Judicial College of Victoria, the Judicial Commission of New South Wales and the state and territory law societies and bar associations should consider conducting educational programs about the policy underlying the approach of the uniform Evidence Acts to admissibility of evidence. The Inquiry also identified the following areas as warranting consideration:

  • improper questioning;
  • the admissibility of evidence of expert opinion;
  • the cognitive and behavioural development of children and the implications of this for the reliability of the evidence of child witnesses; and
  • the nature of sexual assault, including the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault.


[1] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004).

[2] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005).

[3] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [793]–[800]. This is subject to one significant qualification, discussed below.

[4] See discussion in Pfennig v The Queen (1995) 182 CLR 461, 512; BRS v The Queen (1997) 191 CLR 275, 322.

[5]Pfennig v The Queen (1995) 182 CLR 461, 512–513.

[6] R Eggleston, Evidence, Proof and Probability (2nd ed, 1983), 97–98.

[7] See, eg, research cited in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [795]–[800].

[8]Pfennig v The Queen (1995) 182 CLR 461.

[9] Murphy J expressed similar reservations concerning the impact of such evidence on the presumption of innocence in the earlier case of Perry v The Queen (1982) 150 CLR 580, 594: ‘The presumption of innocence and the strict standard of proof required in criminal cases tend to be indirectly and subtly undermined from the outset by reference to a sequence of events which according to common human experience would not occur unless the accused were guilty’.

[10]Pfennig v The Queen (1995) 182 CLR 461, 512.

[11] Ibid, 513.

[12] C Williams, ‘Approaches to Similar Fact Evidence: England and Australia’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (2003) 21, 22; C Williams, Submission E 14, 3 February 2005.

[13] Law Commission, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, [A 35]–[A 38].

[14] See Law Commission, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, CP 141 (1996) Appendix D, [D 63].

[15] Law Commission of England and Wales, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, [38].

[16] See Z Kunda, Social Cognition (1999), 417–421; J Hunt and T Budesheim, ‘How Jurors Use and Misuse Character Evidence’ (2004) 89 Journal of Applied Psychology 347, 348.

[17] H Hartshorne and M May, Studies in Deceit (1928); W Mischel, Personality and Assessment (1968).

[18] See S Epstein, ‘The Stability of Behaviour: I. On Predicting Most of the People Much of the Time’ (1979) 59 Journal of Personality and Social Psychology 202; S Epstein, ‘The Stability of Confusion: A Reply to Mischel and Peake’ (1983) 90 Psychological Review 179; S Epstein and L Terapulsky, ‘Perception of Cross-Situational Consistency’ (1986) 50 Journal of Personality and Social Psychology 1152; D Funder and C Randall Colvin, ‘Explorations in Behavioral Consistency: Properties of Persons, Situations, and Behaviors’ (1991) 60 Journal of Personality and Social Psychology 773.

[19] Z Kunda and R Nisbett, ‘The Psychometrics of Everyday Life’ (1986) 18 Cognitive Psychology 199, 221.

[20] T Wilson and N Brekke, ‘Mental Contamination and Mental Correction: Unwanted Influences on Judgments and Evaluations’ (1994) 116 Psychological Bulletin 117.

[21] Ibid, 122.

[22] J Hunt and T Budesheim, ‘How Jurors Use and Misuse Character Evidence’ (2004) 89 Journal of Applied Psychology 347.

[23] R Wissler and M Saks, ‘On the Inefficiency of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt’ (1985) 9 Law and Human Behavior 37; K Pickel, ‘Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation that Does Not Help’ (1995) 19 Law and Human Behavior 407; J Lieberman and J Arndt, ‘Understanding the Limits of Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence’ (2000) 6 Psychology, Public Policy and Law 677.

[24] M Costanzo, Psychology Applied to Law (2004), 144–146.

[25] S Kassin and S Sommers, ‘Inadmissible Testimony, Instructions to Disregard, and the Jury: Substantive versus Procedural Considerations’ (1997) 23 Personality and Social Psychology Bulletin 1046.

[26] N Finkel, Not Fair! The Typology of Commonsense Unfairness (2001).

[27] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [800].

[28] Uniform Evidence Acts ss 97, 98, 103; Evidence Act 1995 (Cth) 105.

[29] Uniform Evidence Acts ss 101(2), 135, 137.

[30] Ibid ss 90, 136, 189, 192; Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) s 114.

[31]Evidence Act 1995 (Cth) only.

[32]R v BD (1997) 94 A Crim R 131, 139.

[33]R v Ellis (2003) 58 NSWLR 700, [78].

[34] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), 312.

[35] Uniform Evidence Acts ss 97, 98.

[36] Ibid s 103(1).

[37]R v Lockyer (1996) 89 A Crim R 457, 459. This has been cited with approval in a number of cases: R v Lock (1997) 91 A Crim R 356; R v AH (1997) 42 NSWLR 702; R v Fordham (1997) 98 A Crim R 359; R v Martin [2000] NSWCCA 332.

[38]R v Lockyer (1996) 89 A Crim R 457, 459.

[39]Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175–176.

[40]R v Ellis (2003) 58 NSWLR 700, [78]; R v BD (1997) 94 A Crim R 131, 139.

[41]R v Swaffield (1998) 192 CLR 159, [54].

[42] Ibid, [68], [70].

[43] See, eg, R v Em [2003] NSWCCA 374; R v Fernando [1999] NSWCCA 66.

[44]R v Duncan & Perre [2004] NSWCCA 431.

[45] Wood CJ at CL noted at [248] that a similar situation had arisen in R v GAC (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, McInerney and Sully JJ, 1 April 1997).

[46]R v Fowler (2003) 151 A Crim R 166.

[47] Ibid, [160].

[48] D Mathias, ‘Probative Value, Illegitimate Prejudice and the Accused’s Right to a Fair Trial’ (2005) 29 Criminal Law Journal 8, 11.

[49]Pfennig v The Queen (1995) 182 CLR 461, [39].

[50]Papakosmas v The Queen (1999) 196 CLR 297, [93]. Unfair prejudice is also discussed in Ch 16.

[51] Ibid, [97].

[52] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [51].

[53] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [82].

[54] New South Wales District Court Judges, Consultation, Sydney, 3 March 2005.

[55] Ibid.

[56] Criminal Bar Association of Victoria, Submission E 114, 22 September 2005.

[57] Victoria Police, Submission E 111, 30 September 2005.

[58] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[59] Intellectual Disability Rights Service, Submission E 101, 23 September 2005.

[60] Australian Securities & Investments Commission, Submission E 97, 20 September 2005.

[61] Australian Federal Police, Submission E 92, 20 September 2005.

[62] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[63] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.