Beserick v The Queen

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Beserick, against the respondent, The Queen. The core of the dispute revolved around the admissibility of evidence of propensity in criminal proceedings, and whether the court below had correctly applied the principles established by the High Court in relation to such evidence.

The legal issues before the High Court were whether the court below had erred in its understanding and application of the principles governing the admissibility of evidence of propensity, particularly in circumstances where such evidence might have a prejudicial effect on a jury. Specifically, the applicant argued that the court below had misconstrued the High Court's previous pronouncements on the "special circumstances" required for the admission of evidence that tends to disclose criminality other than that charged, and the threshold of probative value that such evidence must meet.

The applicant contended that the court below's reasoning, which suggested that evidence tendered to prove a fact in issue, other than merely showing the commission of another offence or a propensity to commit an offence, was admissible without necessarily passing an initial test of high probative force, was flawed. The applicant argued that all such evidence, at its root, is evidence of propensity, and the crucial question is what else it proves. The High Court's previous decisions, such as *Harriman*, were cited to support the proposition that evidence of propensity or similar fact evidence must possess a high degree of probative force to be admissible, or at least demonstrate that the facts alleged by the Crown are probable. The applicant submitted that the court below had incorrectly distinguished between evidence tendered merely as propensity evidence and evidence tendered to prove a fact in issue, thereby lowering the necessary threshold for admissibility.