Tendency Evidence in Hughes v The Queen: Similarity, Probative Value and Admissibility

Sydney Law Review, Vol. 38, No. 4, pp. 491-503, 2016

Sydney Law School Research Paper No. 17/08

14 Pages Posted: 3 Feb 2017

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Date Written: 2016

Abstract

Hughes v The Queen is concerned with the admissibility of evidence of other allegations as tendency evidence in a child sexual assault prosecution. The appellant argues that the other allegations must share distinctive similarities with the charged offence to satisfy the s 97 requirement of ‘significant probative value’. However, this stringency is unjustified. Empirical research into the behaviour of child sex offenders suggests they are not highly specialised in the way they carry out child sexual abuse. Further, the stringent approach to admissibility is inconsistent with the logic of probative value. The power of evidence to discriminate between guilt and innocence depends upon it being consistent with guilt and inconsistent with innocence. The various allegations may not share any peculiar features with the charged offence. However, they can still be far more consistent with guilt than with innocence. Child sexual abuse is unusual in itself. It would be highly improbable for a defendant, though innocent of the child sexual abuse charges, to be the frequent subject of other allegations.

Keywords: Tendency evidence, coincidence evidence, propensity, similar fact evidence, high court, appeals, uniform evidence law, proof, inference

JEL Classification: K10, K14, K30, K41

Suggested Citation

Hamer, David A., Tendency Evidence in Hughes v The Queen: Similarity, Probative Value and Admissibility (2016). Sydney Law Review, Vol. 38, No. 4, pp. 491-503, 2016, Sydney Law School Research Paper No. 17/08, Available at SSRN: https://ssrn.com/abstract=2910793

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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