Tag: Propensity Evidence

‘Context evidence’, relevance and propensity reasoning

The Court of Appeal has delivered several recent judgments which relate to ‘context evidence’ – a form of evidence which does not go to establishing guilt, but which is only relevant to the evaluation of other evidence. Context evidence is to be distinguished from propensity evidence and other evidence which actually goes towards proof of the prosecution case. A particularly difficult consideration with evidence which is said to be adduced for context purposes is its relationship with the rules relating to propensity, and the risk that such evidence may be, in substance, being led for propensity purposes (and, indeed, the risk that even proper context evidence could be used by the fact-finder to engage in impermissible propensity reasoning).

HTN v Western Australia [No 2] [2022] WASCA 51 is one recent case which helpfully summarises some of the important principles enunciated in previous decisions and provides an example of their application. It also shows the importance of the distinction between directly and indirectly relevant evidence when considering these concepts. This appeal related to convictions for two counts of indecent dealing. Due to the complexity of the matter, it is not possible to provide in this brief blog post a full account of the evidence at trial, the appeal in relation to it, and the Court of Appeal’s disposition of the grounds. Those who are interested should read the case in full here. However, the following extracted paragraphs are particularly helpful to understand the matter, the concepts, and their application:

[32] The judge told the jury that [certain evidence given at trial] was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[33] The judge gave further detailed directions about this, as follows:

“For example, it may provide a helpful context, or even necessary for an understanding of the narrative.  It may explain a statement or event or conduct that would otherwise appear curious or unlikely.  It may cut down or reinforce the plausibility of something a witness has said.  It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].”For example, it may provide a helpful context, or even necessary for an understanding of the narrative.  It may explain a statement or event or conduct that would otherwise appear curious or unlikely.  It may cut down or reinforce the plausibility of something a witness has said.  It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn’t happen in a vacuum or out of the blue, and that they were not isolated incidents.  It’s also something you’re able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable.  For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.

That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time.  It may also explain any delay or failure to complain.  Now, whether you use the other conduct evidence in the ways that I’ve just described, and if so, to what extent, are matters entirely for you.  The ways I have described are the only ways in which you can use the other conduct evidence.”

[34] The judge then directed the jury as to how they must not use the other conduct evidence:

Having said how you may use a finding based on the other conduct evidence, I now need to direct you on how you must not use that evidence.

The other conduct evidence cannot, in itself, prove any of the offences set out in the indictment.  You cannot use the other conduct evidence in substitution, in any way, for the direct evidence of the incidents charged in relation to the offences set out on the indictment.  Nor does it fill any gaps or make any other evidence more reliable.  Any finding you make in relation to the other conduct evidence cannot and must not lead automatically to a finding of guilt of any of the offences set out in the indictment.

If you find that [AC] or [the appellant] did the other conduct, you must not reason that they must therefore have committed one or more of the offences set out on the indictment.  It doesn’t follow that, because a person has on a previous occasion committed an act, that they did the same or a similar act on another occasion, or that they are the type of person likely to have committed these kinds of offences.

The ultimate question for you to decide, members of the jury, is whether, having regard to the whole of the evidence, the State has proved beyond reasonable doubt that the accused committed the acts constituting the offences against [AMC] and/or [TDC], as set out on the indictment.  You mustn’t convict either accused of any of the offences set out in the indictment unless the State satisfies you beyond reasonable doubt that they committed the specific acts alleged to comprise that particular offence. 

[48] [The grounds of appeal included:]

Ground 1A:  the other conduct evidence of AMC in relation to count 1 was not probative and was highly prejudicial, giving rise to a miscarriage of justice.

Ground 1B:  there was a real risk that the jury may have adopted propensity reasoning in relation to count 1 derived from, or based on, the other conduct evidence of AMC, thereby occasioning a miscarriage of justice. 

[106] … in our view, to adduce evidence for the purpose of inviting the jury to reason that the fact that the accused had done something similar to the charged act on one or more other occasions made it more likely that the accused had committed the charged offence is to invoke propensity reasoning and to use the evidence as propensity evidence.

Ground 1A: disposition

[107] In our view, the use of the [evidence in order to make NC’s evidence appear less curious, unlikely, or implausible, as suggested by the respondent] involves or invites propensity reasoning and consequently was impermissible. As the respondent ultimately accepted, NC’s evidence as to count 1 was rendered ‘more plausible’ by the other conduct evidence only on the basis that the other conduct evidence established that the appellant and AC had done something similar on a different occasion. In that manner, in substance, the respondent invited a use of the other conduct evidence that involved reasoning to the following effect: the accused had done something similar to the charged act on a different occasion, which made it more likely that the accused committed the charged offence… to so use the other conduct evidence involves propensity reasoning.

[108] This conclusion cannot be avoided, as the respondent sought to do, by attempting to characterise the use of the evidence as (merely) assisting the evaluation of the credibility or reliability of NC’s evidence. As we have said, NC’s evidence as to count 1 was rendered more plausible only on the basis and to the extent that the other conduct evidence established that the appellant and AC had done something similar on a different occasion, and thus, by implication, were more likely to have engaged in the charged conduct. Reasoning founded on that basis is, in substance, a matter of direct relevance. Its character cannot be altered by framing the position in terms of rendering the account given by NC more plausible.

[109] Properly understood, the use invited by the respondent is not of the kind explained by Gleeson CJ [as potentially relevant and admissible] in HML v The Queen… In speaking of the plausibility of what a witness has said, Gleeson CJ was referring to one or more particular features of the account given by a witness of the circumstances attending the offence, not to the plausibility of the offending itself…

[110] In substance, the respondent invites use of the other conduct evidence to reduce the implausibility of the occurrence of the charged offence, not to reduce the implausibility of a factual feature of a witness’ account of the offending conduct and its circumstances. In the present case, the respondent’s submissions did identify implausibility in some particular features of NC’s account, namely that the conduct did not stop when she confronted them and continued to the point where she had to remove the children.[93] Otherwise, it was simply the fact of the commission of the offence which was said to be extraordinary and implausible. The other conduct evidence does not have the specific features of continuing in front of an adult, or any similar feature. Thus, the other conduct evidence does not itself reduce the implausibility arising from the identified feature of NC’s account. Rather, the other conduct evidence seeks to overcome the apparent implausibility of NC’s account by its appeal to propensity reasoning.

[111] The distinction drawn in [108] above – between using evidence to make the charged conduct more likely and using evidence only to place other prosecution evidence in context – is supported by this court’s recent decision in LNN v The State of Western Australia. In that case, the dispositive elements of the court’s reasoning draw, and mark, the distinction between evidence of uncharged sexual offending adduced as propensity evidence and such evidence adduced as context evidence. The court explained that context evidence is evidence that does not go towards establishing guilt, but is only relevant to evaluation of other prosecution evidence. The court contrasted context evidence with other evidence, including propensity evidence, that goes towards proof of the prosecution case. A real risk of propensity reasoning arose in LNN, the court found, because the judge’s direction left it open to the jury to reason that the accused in that case was more likely to have committed the charged offences because of his other uncharged offending.

[113] The position in the present case has some analogy to this court’s recent decision in JEL v The State of Western Australia, in which the court rejected the distinction advanced by the respondent between (i) using evidence to ‘broadly support the complainant’s credibility’ and (ii) inviting propensity reasoning.

[115] For these reasons, in our opinion, the use of the other conduct evidence invited by the respondent was, and is, impermissible because it is, in substance, a propensity use of the evidence.

[116] …the evidence was irrelevant.

[117] … In our opinion, a miscarriage of justice occurred because the judge directed the jury that the other conduct evidence was relevant to their consideration of count 1 in circumstances when, for the reasons we have explained, it was not relevant to that count. That, in itself, occasioned a miscarriage of justice.

[118] In our respectful opinion, the conclusion that the admission of the evidence occasioned a miscarriage of justice is reinforced by consideration of the judge’s direction as to the manner in which the jury was permitted to use the other conduct evidence.

[119] The judge told the jury that this evidence was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[120] The judge gave further detailed directions about this, as follows:

“For example, it may provide a helpful context, or even [be] necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn’t happen in a vacuum or out of the blue, and that they were not isolated incidents. It’s also something you’re able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable. For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.

That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time. It may also explain any delay or failure to complain. Now, whether you use the other conduct evidence in the ways that I’ve just described, and if so, to what extent, are matters entirely for you. The ways I have described are the only ways in which you can use the other conduct evidence.“

[121] It is apparent that, in so directing the jury, the judge identified a number of permissible uses for the evidence. The judge told the jury that the other conduct evidence was background and context that ‘makes [the complainant’s] accounts more intelligible’, saying, by way of example that:
(1) The evidence ‘may provide a helpful context or even [be] necessary for an understanding of the narrative’.
(2) The evidence ‘may explain a statement or event or conduct that would otherwise appear curious or unlikely’.
(3) The evidence ‘may cut down or reinforce the plausibility of something a witness has said’.
(4) The evidence ‘may assist [the jury] to use [their] common sense and experience of life to evaluate the evidence relevant to a particular event involving [either complainant]’.

The judge then identified the following further permissible uses of the other conduct evidence:
(5) To show that the offences alleged against the complainants did not happen in a vacuum or out of the blue and were not isolated incidents.
(6) To take it into account in determining whether the jury was satisfied that the evidence of each complainant was honest, accurate and reliable, giving an example that if a complainant gave evidence that certain behaviour happened repeatedly over time, it may be relevant to the jury’s assessment of the complainant’s credibility and the complainant’s ability to recount details of a specific event.
(7) To explain any delay or failure to complain.

[123] First, it is, in our respectful opinion, undesirable and inappropriate for a judge directing a jury to attempt to deal compendiously with various species of other conduct evidence, some of which were capable of being put to one (or more) use, and others of which were capable of being put to a different use, and which related to different counts and to different accused. As recently emphasised in JEL, specificity and precision is of vital importance in this area.

[124] Secondly, we have already explained why, contrary to the respondent’s submission, the second and third uses identified in [121] above were not available or permissible. The same was true of all of the uses of the other conduct evidence identified in [121]…

[125] Many of the uses identified in [121] simply made no sense…

[127] Thirdly, again with respect, it is difficult to avoid the conclusion that this direction involves the use of a template without the necessary attention being given to which, if any, aspect of the template is apposite to the particular evidence the subject of the direction.

[129] For these reasons, ground 1A is made out.

Ground 1B: disposition

[130] We are comfortably satisfied that, in all the circumstances, there was a real risk that the jury may have reasoned along the lines that the other conduct evidence proved that the two accused had acted on another occasion in a manner similar to count 1 and that this made it more likely that they committed count 1. It is reasonably possible that the jury may have so reasoned in response to the parts of the trial judge’s direction on which the respondent relied in its submissions. More generally and in any event, the jury may have embarked upon such reasoning, based upon their own logic and experience, and bearing in mind the evident similarity between the events described in this part of AMC’s other conduct evidence and the conduct the subject of count 1.

[132] …ground 1B is established.

[133] … In our view, the miscarriage of justice arising from these matters is not [confined to count 1]. For the reasons already given, the judge’s direction gave rise to a real risk that the jury would reason, by reference to AMC’s other conduct evidence, that the appellant and AC having behaved in a similar manner in the incident the subject of the other conduct evidence made it more likely that they acted as alleged in relation to count 1. Given that counts 1 ‑ 3 involved a single incident said to have occurred in the presence of the three children, and given that the State case relied, in respect of all three counts, on the same evidence, it would be to expect the jury to perform unrealistic mental gymnastics for them to reach a different conclusion on the question of whether the conduct occurred as between counts 1 and 2.

[134] For these reasons, we are satisfied that the wrongful admission of the other conduct evidence in the case against the appellant, and the consequential risk of the jury using propensity reasoning, gave rise to a miscarriage of justice in relation to both count 1 and count 2.

Propensity and Relationship Evidence in WA

The Law Reform Commission of Western Australia’s Final Report for ‘Project 112: Admissibility of Propensity and Relationship Evidence in WA’ was tabled in the Western Australian Parliament on 17 August 2022.

The Attorney General asked the Commission to respond to this question: ‘Having regard to section 31A of the Evidence Act 1906 (WA) and the more recently introduced section 97A of the Model Uniform Evidence Bill, what rules should apply to determine the admissibility of propensity and relationship evidence, and other evidence of discreditable conduct, so that all relevant evidence is available to West Australian courts, while also ensuring the right to a fair trial?’

This inquiry took place in the context of Western Australia’s likely adoption of the Uniform Evidence Law in the future. The Uniform Evidence Law has been enacted in the Commonwealth jurisdiction, as well as in Victoria, New South Wales, Tasmania, the Australian Capital Territory, and the Norther Territory. As set out in the Final Report: ‘it is a matter of public knowledge that new evidence legislation is currently being drafted to replace the Evidence Act. The new Act will adopt the UEL but will retain any Western Australian evidentiary provisions that are deemed sound’ (at page 5).

Ultimately, the Commission recommended that: ‘If the Uniform Evidence Law is enacted in Western Australia, it should adopt the Uniform Evidence Law’s approach to tendency and coincidence evidence, rather than inserting a reformulated version of section 31A of the Evidence Act’ (recommendation 1).

The Commission reached this view for a number of reasons. First, it noted the conceptual issue in that s 31A currently operates on the premise that propensity and relationship evidence is inadmissible unless it meets the requirements of s 31A. However, the Uniform Law makes all relevant evidence admissible unless otherwise provided (with the tendency and coincidence provisions then operating to render certain relevant evidence inadmissible). The Commission noted that the benefits of adopting the uniform provisions ultimately justified adopting the uniform approach rather than reformulating s 31A to work in the conceptually distinct Uniform Law context. Those benefits include a more uniform approach to the admission of propensity and relationship evidence throughout Australia; the utility of the body of case law concerning the uniform provisions from those jurisdictions; and that the uniform provisions are ‘easier to understand and apply than the s 31A test’ (at pages 8–10).

The Commission further recommended that:

‘The tendency and coincidence provisions should be available to assist in proving all offences, whether they are of a sexual nature or otherwise’ (recommendation 2);

‘A version of section 97A of the Uniform Evidence Law, which contains rebuttable presumptions concerning the admissibility of tendency evidence in criminal proceedings concerning child sexual offence, should be enacted. That provision should only apply to child sexual offences. It should make it clear that a child sexual offence includes an attempted child sexual offence. The provision should not apply to coincidence evidence’ (recommendation 3);

‘Parties should be required to provide notice of their intention to adduce tendency or coincidence evidence. The nature of the details that should be included in the notice, and the time within which the notice must be given, should be determined by the rules of court’ (recommendation 4); and

‘A version of section 101 of the Uniform Evidence Law that is currently in operation in the ACT, NSW and the NT, should be enacted so that tendency and coincidence evidence about the accused cannot be used against the accused unless the probative value of the evidence outweighs the danger of prejudice to the accused’ (recommendation 5).

You can access the Commission’s Final Report here.