The Admissibility and Use of Relationship and Propensity Evidence after HML v. The Queen (2008) 235 CLR 334

Current Legal Issues Seminar, Qld SC Banco Court, July 30, 2009

Sydney Law School Research Paper No. 10/20

15 Pages Posted: 5 Feb 2010

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Date Written: February 4, 2010

Abstract

HML may be the High Court’s longest decision on criminal and evidence law, and it is certainly one of the most difficult. Yet, it is possible to draw some authoritative propositions from the case. Relationship evidence cannot be admitted for a propensity purpose without being subjected to the exclusionary rule and the Pfennig admissibility test. Much relationship evidence, particularly that relating to acts comparable to the charged offences, will satisfy the Pfennig test. Having been admitted, relationship evidence should not be used for a propensity purpose unless the jury considers the other incidents proven beyond reasonable doubt. These propositions may now be taken as authoritative, however, they are still open to criticism by reference to the logic of proof and the broader principles of criminal evidence law. HML has done little to resolve the tensions in this area, and may serve only to generate material for further appeals.

Keywords: relationship evidence, propensity evidence, similar facts, circumstantial evidence, admissibility, exclusion, High Court of Australia, HML, Phillips, Pfennig, inference, proof

JEL Classification: K10, K14, K30, K40

Suggested Citation

Hamer, David A., The Admissibility and Use of Relationship and Propensity Evidence after HML v. The Queen (2008) 235 CLR 334 (February 4, 2010). Current Legal Issues Seminar, Qld SC Banco Court, July 30, 2009, Sydney Law School Research Paper No. 10/20, Available at SSRN: https://ssrn.com/abstract=1548186

David A. Hamer (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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