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
15 Pages Posted: 5 Feb 2010
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: Suggested Citation