Evidence—Similar facts—Criminal trial—Admissibility—Accused charged with sexual offences against three boys—Whether evidence in relation to count involving one boy admissible in relation to those involving others. Criminal Procedure—Trial—Separate trial—Separate but similar offences—Charges in relation to different people—Possibility of concoction.
Decisions
MASON C.J., WILSON AND GAUDRON JJ. The facts are set out in the judgment of Brennan and Dawson JJ. We need not repeat them.
2. The question raised by this application for special leave to appeal is whether there should have been separate trials of the separate counts contained in the indictment presented against the applicant. Each count charged the commission of a sexual offence and, unless the evidence of each offence was admissible in relation to the other offences charged, separate trials should have been ordered: De Jesus v. The Queen (1986) 61 ALJR 1; 68 ALR 1. In the present case the direct evidence of the commission of each offence charged was held to be admissible as similar fact evidence of the other offences charged, and an application for separate trials was refused.
3. The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. See Dixon J.'s discussion (at p 375) in Martin v. Osborne (1936) 55 CLR 367. In that same case Evatt J. pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for "admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence" (at p 385).
4. Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. See Perry v. The Queen (1982) 150 CLR 580, at pp 586-587, 605 and 610; Sutton v. The Queen (1984) 152 CLR 528, at p 563; Reg. v. Boardman 1975 AC 421, at pp 439 and 444. That strength lies in it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.
5. Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hoch v the Queen [1988] HCA 50
Case
[1988] HCA 50
Decision Date
CaseChat Overview and Summary
In *Hoch v The Queen*, the High Court of Australia considered the admissibility of similar fact evidence in a criminal trial where the accused faced multiple sexual offence charges involving three different boys. The central dispute concerned whether evidence relating to the alleged offences against one complainant could be admitted as evidence in relation to the charges involving the other two complainants.
The High Court was required to determine two primary legal issues. Firstly, it had to consider the principles governing the admissibility of similar fact evidence in circumstances where the alleged offences were separate and involved different victims. Secondly, the Court had to assess whether, in light of the potential for prejudice and the risk of concoction, the trial judge had erred in admitting such evidence, and consequently, whether separate trials should have been ordered.
The Court reasoned that the admissibility of similar fact evidence depends on whether its probative value in relation to a particular issue outweighs its prejudicial effect. In this instance, the Court found that the evidence relating to the offences against one boy did not possess sufficient probative value to justify its admission in relation to the charges involving the other two boys. The similarities between the alleged offences were not so striking as to render the evidence of one set of alleged acts highly probative of the truth of the allegations in the other sets. The Court concluded that the admission of this evidence was an error, as it created an unacceptable risk of the jury using the evidence to infer guilt across all charges, rather than considering each charge on its own merits.
Consequently, the High Court allowed the appeal, set aside the judgment of the Court of Criminal Appeal of Queensland, and ordered that the convictions and sentences be quashed. The Court directed that a judgment and verdict of acquittal be entered on each charge.
Orders
Orders of the court
Application for an extension of time in which to apply for special leave to appeal granted.
Application for special leave to appeal granted.
Appeal allowed.
Set aside the judgment of the Court of Criminal Appeal of Queensland and in lieu thereof -
(i) order that the appeal to that court be allowed and the convictions and sentences be quashed; and (ii)direct that a judgment and verdict of acquittal be entered on each charge.