Admissibility and the Use of Relationship Evidence in HML v. the Queen: One Step Forward, Two Steps Back
Criminal Law Journal, Vol. 32, pp. 351-367, December 2008
University of Queensland TC Beirne School of Law Research Paper No. 09-22
18 Pages Posted: 22 Jun 2009 Last revised: 29 Jul 2009
Date Written: December 1, 2008
Abstract
In HML v. The Queen, the High Court considered whether relationship evidence may be admissible to provide context and/or to support propensity reasoning. Unfortunately, common ground among the judgments is difficult to find. It remains unclear whether the exclusionary rule is limited to evidence tendered for the purpose of showing the defendant’s propensity, or whether it also covers context evidence that only incidentally reveals the defendant’s propensity. There was broad agreement that evidence of uncharged sexual offences will satisfy the admissibility test, and can then be used for propensity and context. However, it is unclear how far this conclusion extends. It appears possible that evidence of grooming may be admissible for neither propensity nor context. Furthermore, a clear majority supported a proposition at odds with the logic of circumstantial proof – the jury may only use relationship evidence for propensity reasoning if sexual attraction is considered proven beyond reasonable doubt.
Keywords: relationship evidence, context evidence, propensity evidence, similar fact evidence, criminal evidence, HML (2008) 245 ALR 204, Pfennig (1995) 182 CLR 461, Phillips (2006) 225 CLS 303, Chamberlain (1984) 121 CLR 221, Shepherd (1990) 160 CLR 334
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