Tendency Evidence in Hughes v The Queen: Similarity, Probative Value and Admissibility
Sydney Law Review, Vol. 38, No. 4, pp. 491-503, 2016
14 Pages Posted: 3 Feb 2017
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: Suggested Citation