Tendency evidence – proof and cross-proof: DPP v Roder (A Pseudonym) [2024] HCA 15

When a trial involves multiple charges against one defendant, and they are of a similar nature, an issue may arise over when evidence relating to one or more of those charges can be used as contributing to proof of one or more other of the charges.

If evidence about one offence is relevant to proof of another charge, that can be because it shows that the defendant has a propensity or a tendency to act in the way charged.

I use the synonym [23] propensity out of habit: I have a tendency to say propensity when I could equally say tendency.

Do the facts that allegedly show a propensity have to be proved beyond reasonable doubt before they can be used towards proof of another charge?

Further, what is the correct way to use propensity evidence in reasoning towards a verdict on a charge in respect of which the propensity evidence is admissible? Do charges have to be worked through sequentially and then re-worked as verdicts are reached and propensity evidence is accumulated?

In DPP v Roder (A Pseudonym) [2024] HCA 15 a bench of 7 justices delivered a unanimous judgment addressing issues that I have summarized in these questions, except here there was agreement between counsel on the cross-admissibility of the propensity evidence (the issue mentioned in my first paragraph, above). [6] The context is evidence legislation in the State of Victoria, but this judgment also has wider relevance.

Of interest to criminal procedure buffs and law reformers is the interlocutory nature of this appeal: the trial judge had issued a ruling about how the jury would be directed about the use of propensity evidence, and this ruling was the subject of the appeals. Plainly, this is a sensible method of preventing errors that could require orders for retrials.

What was decided here? No standard of proof applies to the issue of whether the evidence shows that the defendant has a propensity to act in the way charged. [31] There is one exception to this: where the existence of the propensity is an essential link in a chain of proof leading to the verdict. In such a case, the propensity would have to be proved beyond reasonable doubt unless legislation provides to the contrary. [24]

Here, the legislation does provide to the contrary, so the facts alleged to show a propensity never have to be proved beyond reasonable doubt. A different legislated position exists in New South Wales, as described at [29].[1]

Roder settles the question, whether a standard of proof applies to propensity evidence, that had been unclear at common law in Australia: see HML v The Queen [2008] HCA 16 (noted here on 26 April 2008) and Grooby v R [2018] NZSC 114. Now, the starting point for deciding issues concerning propensity evidence is always the relevant legislation.

But the more general relevance of this decision is on the use of propensity evidence where it arises from multiple charges. This is addressed at [26] where the Court endorsed the reasoning in JS v The Queen [2022] NSWCCA 145 at [43]:

“It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence … relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. …”(emphasis added by the HCA)

Points made here are mentioned at [27] and [28]. These are the demonstration of the lack of circularity and the confining of the use of the standard of proof to the verdict.

So, from the summary at [37], if the fact-finder is satisfied on the basis of all the evidence of the relevant propensity (gleaned from the evidence admissible on each charge) that the propensity exists then it can be used in deciding whether the likelihood is increased that the defendant committed the offence the fact-finder is considering. The complexity arising from a gradual emergence of propensity evidence as charges are worked through sequentially is thus avoided.

___________________________

[1] If, like me, you came to law after a degree in science, you will, at least at first impression, be horrified that standards of proof are not more widely used and are not specified precisely in terms of probabilities. After all, and on reflection, a trial at law is all about conditional probabilities and the comparison of two hypotheses. That is, given this item of evidence what is the probability of each hypothesis (guilt or innocence), and given all these items of evidence, what is the overall probability of each? And when are the probabilities sufficient to support a verdict of guilty? When is the probability of something high enough for me to be satisfied of it? Being satisfied of something in law usually means having decided to accept the existence of that thing. And usually, for example in relation to items of evidence as opposed to the ultimate verdict, acceptance means acceptance on the balance of probabilities. But courts can differ over whether the balance of probabilities is a fixed standard or whether it changes according to the seriousness of the consequences of being satisfied of the existence of the thing.