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Some favourite fallacies about similar facts

Published online by Cambridge University Press:  02 January 2018

T.R.S. Allan
T.R.S. Allan*
Affiliation:
Pembroke College Cambridge
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Extract

There can be few passages ofjudicial exegesis which have claimed more attention, analysis and controversy than Lord Herschell’s famous, or infamous, statement of principle in Makin u A-G for New South Wales. His Lordship had appeared to assert an absolute rule against adducing evidence of bad character in order to prove the defendant’s guilt on the basis ofhis criminal disposition; and in Boardman v DPP Lord Hailsham expressly approved this prohibition on use of the ‘forbidden chain of reasoning’. A recent judgment by Gibbs CJ in the High Court of Australia contains a lucid modern restatement of Lord Herschell’s principle:

‘The prosecution cannot adduce evidence tending to show that the accused has been guilty ofcriminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged.

Type
Research Article
Information
Legal Studies , Volume 8 , Issue 1 , March 1988 , pp. 35 - 47
Copyright
Copyright © Society of Legal Scholars 1988

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References

1. [1894) AC 57.

2. [1975) AC 421.

3. Perry (1982) 44 ALR 449 at 452-453. See also Markby (1978) 21 ALR 448, 454.

4. Eg, Colin Tapper, Proof and Prejudice, Well and Truly Tried (eds Campbell and Waller) (1982) p 198; L.H. Hoffmann, ‘Similar Facts after Boardman’ (1975) 91 LQR 193; Peter Mirfield, ‘Similar Facts - Makin Out?’ (1987) CLJ 83.

5. [1952) 2 QB 911.

6. Boardman (1975) AC 421 at 457.

7. [1918) AC 221.

8. [1967) 2 QB 338.

9. (1982) 76 Cr App R 33.

10. Gibbs CJ proceeds in the judgment cited to offer Ball, Straffen, Makin and Smith as examples of similar facts which were relevant ‘otherwise than via propensity’ (p 454).

11. See also Boardman (1975) AC 421 at 456 (Lord Cross).

12. Perry (1982) 44 ALR 449 at 460 (Murphy J). See also Deane J at 459; and Sutton (1984) 51 ALR 435 at 448 (Brennan J).

13. ‘Similar Fact Evidence and Disposition: Law, Discretion and Admissibility’ (1985) 48 MLR 253. See also Hoffmann, op cit n 4 supra.

14. Boardman (1975) AC 421 at 457 (Lord Cross).

15. Perry (1982) 44 ALR 449 at 474 (Brennan J).

16. Sutton (1984) 51 ALR 435 at 463.

17. Op cit, supra, n 4.

18. This view is taken in Cross on Evidence (6th edn, 1985) where the exclusionary rule is considered (wrongly, it is submitted) to require the balancing of probative force and prejudicial effect: see pp 337–342; but I have been guilty myself of the fallacy of thinking the discretion wholly redundant: op cit, supra, n 13, p 270.

19. See Mirfield, op cit, supra, n 4, p 99.

20. Eg, Selvey v DPP (1970) AC 304; Powell (1985) 1 WLR 1364; Box (1964) 1QB 430;but compare Adrian A.S. Zuckerman ‘Similar Fact Evidence - the Unobservable Rule’ (1987) 104 LQR 187, who suggests unusually that such ‘moral’ prejudice constitutes the main ground of exclusion.

21. I have pointed out that a dual test is similarly required when several counts are joined in the indictment but evidence of disposition per se is admissible on only one or some. If admissible at all, the court must nevertheless weigh the risk of prejudice in relation to the other counts: op cit, p 262, at n 36.

22. Op cit, supra.

23. [1980) VR 303. The dicta were repudiated by the High Court in Perry.

24. Ibid, pp 308–309.

25. Op cit, supra, n 4.

46. Cross on Evidence (6th edn) p 319.

27. [1975) AC 421 at 460 (Lord Cross).

28. Cross on Evidence adopts a similar view of the scope of the exclusionary rule, but appears to include Boardman within it: see pp 314–321.

29. See Lord Wilberforce at (1975) AC 442.

30. (1973) 57 Cr App R 453.

31. Ibid p 464.

32. Cross on Evidence (6th edn) pp 168–170; but compare pp 337–342.

33. Ibid, p 168, n 5; Dworkin, Taking Rights Seriously, pp 31–33.

34. Dworkin is concerned to refute the view that judges have discretion (in the strong sense) in deciding cases when the relevant law is not clear. He does not consider the principles governing the admission of evidence; but it is submitted that the same arguments apply. He recognises, however, that sometimes judges do have discretion, eg, in sentencing: op cit p 71. Rosemary Pattenden's second and third senses of discretion roughly correspond to Dworkin's strong and weak discretion: The Judge, Discretion and the Criminal Trial (1982) pp 3–4.

35. Selvey (1970) AC 304 at 342 (Vicount Dilhorne); Miller (1952) 2 All ER 667 at 669 (Devlin J).

36. [1982) 1 WLR 1138.

37. Ibid p 1142; Cross on Evidence, p 168.

38. It is submitted that Rosemary Pattenden correctly concludes that there is really a ‘continuous spectrum moving from absence of rules at one end to rules which leave virtually nothing to the judgment of the court at the other. In between the judge has a greater or lesser degree of freedom depending on the nature of the standard incorporated into the rule.’ Op cit, pp 7–8.

39. Criminal Appeal Act 1968, s 2(1). Cf Boardman (1975) AC 421 at 453 (Lord Hailsham). The court's view that the jury cannot have convicted the appellant without being satisfied that he used excessive violence or went beyond reasonable correction on the fatal day (p 465) is unconvincing.

40. [1978) QB 1016 at 1028.

41. This point is forcefully made in Cross on Evidence, p 340.

42. Cf Ward v James (1965) I All ER 568 at 570 (Lord Denning MR).

43. [1914) AC 545.

44. [1978) Crim LR 92.

45. [1983) 3 All ER 101. The decision was disapproved in Powell (1986) 1 All ER 193, where the court took a different view of the principles governing the exercise of the judge's discretion.

46. (1982) 75 Cr App R 247.

47. Morris (1969) 54 Cr App R 69 at 83 (Widgery LJ; italics supplied).

48. For an example of guidance on when exercise of the discretion to exclude would be wrong, see Jeffrey v Black (1978) 1 QB 490 at 498 (Lord Widgery CJ).

49. [1965) 1 All ER 560.

50. Ibid, p 562 (Lord Parker CJ). Note also the remarks of Lord Wilberforce as regards the test for admissibility: ‘whether the judge has properly used and stated the ingredients of experience and common sense may be reviewed by the Court of Appeal.’ (Boardman (1975) AC at 444-445).

51. Op cit, n 4, supra. Tapper also denies that the rule forbids a line of reasoning, reinterpreting Makin as stating a principle about relevance: op cit n 4, supra, pp 197–204.

52. Selvey (1970) AC 304 at 342 per Viscount Dilhorne, quoting Devlin J in Cook (1959) 2 QB 340 at 348.

53. Maxwell v DPP (1935) AC 309 at 317; and see Police and Criminal Evidence Act 1984, s 74(3) expressly assuming a principle excluding the forbidden reasoning.

54. Eg Boardman (1975) AC at 463 (Lord Salmon) and 453 (Lord Hailsham); Markby (1978) 21 ALR at 455 (Gibbs ACJ); Perry, infra. See also Lunt (1987) 85 Cr App R 241 at 244-245, where the guidelines suggested by the Court of Appeal are essentially consistent with the present analysis.

55. Perry (1982) 44 ALR 449 at 453.

56. Selvey (1970) AC 304 at 352 (Lord Guest).