The Structure and Strength of the Propensity Inference: Singularity, Linkage and the Other Evidence
Monash University Law Review, Vol. 29, pp. 137-196, 2003
University of Queensland TC Beirne School of Law Research Paper No. 09-25
61 Pages Posted: 11 Oct 2009
Date Written: 2003
Abstract
This article brings some coherence to the law of similar fact evidence through a close focus on the logical structure of the propensity inference. For the inference to operate, the defendant must be linked with other misconduct which shares sufficient singularity with the charged offence. Any assessment of the inference must also have regard to the other evidence. The other evidence may play a contributing role, narrowing the issues and lessening the work demanded of the propensity inference. Alternatively, it may have the effect of rendering the propensity inference unnecessary. Where the propensity inference is supported by other independent incriminating evidence, it will not be necessary for the linkage and singularity components to satisfy the criminal standard of proof on their own. The analysis in this article has application to both the propensity and coincidence variants of the inference, and to both the admissibility and proof stages of the trial. The English Law Commission's draft Bill and Chapter I and Part II of the Criminal Justice Bill are criticised for failing to take account of the logical structure of the inference.
Keywords: courts, criminal law, criminal procedure, evidence, judicial reasoning
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