QUESTION
You are briefed to appear in the Supreme Court, Court of Appeal in this application for leave to appeal on behalf of the applicant and to make submissions regarding the first ground above under appeal. The Court has requested a short summary of argument to be prepared by counsel in advance of oral submissions. You should ensure that your written submission refers to the likely arguments to be advanced by the Crown.
SOLUTION
Introduction
The case of Hopkins v Director of Public Prosecutions is currently being heard in the Supreme Court of Victoria Court of Appeal. The applicant, Damon Hopkins, has been charged with four armed robberies committed in shops using a knife. It is alleged that these robberies were committed in conjunction with his older sister, Veronica. The prosecution seeks to adduce evidence of similar robberies between 5 February 2018 and 17 August 2019 as tendency evidence. Tendency evidence is evidence of a person's character or disposition that is used to infer that they have acted in a particular way.
The admissibility of tendency evidence has been the subject of much debate in the legal system. In Australia, the Uniform Evidence Law (UEL) sets out the rules of evidence that apply in federal courts and most state and territory courts. The UEL provides a framework for the admissibility of tendency evidence but is also subject to the common law rules of evidence.
This written submission will explore the admissibility of tendency evidence in the Hopkins v Director of Public Prosecutions case. It will examine the common law and the UEL to determine whether the evidence sought to be adduced by the prosecution is admissible.
Issue
Is the tendency evidence admissible under the common law and AUEL in the case of Hopkins v Director of Public Prosecutions?
Rule
The rule regarding the admissibility of tendency evidence under sections 97 and 101 of the Australian Uniform Evidence Law (AUEL) is a crucial component of the legal framework governing evidence presentation in Australian courts.[1] Tendency evidence, as defined by the AUEL, refers to evidence that is presented to show that the accused tends to act in a particular way, which may be relevant to the fact in issue. The rule stipulates that the evidence can be admitted in court if it meets certain criteria, which include relevance, probative value, and lack of prejudicial effect.
Application
Tendency evidence suggests that an accused person has a propensity or tendency to behave in a certain way, and it is often used to prove that the accused committed the crime in question. The use of tendency evidence is discussed in the case of the applicant and his older sister, Veronica, who is accused of committing four armed robberies in shops using a knife. The prosecution seeks to adduce the evidence as evidence of a tendency or propensity on the part of the applicant to commit the crimes in question.
Relevance of Tendency Evidence
In this case, the tendency evidence is relevant to the issue of identification. The evidence of the four incidents could lead to the inference that the applicant and Veronica tended to commit the crimes in question. This would make it more likely that the applicant committed the crimes charged; hence, the evidence is relevant. However, the admission of tendency evidence is subject to strict rules to ensure that its prejudicial effect does not outweigh its probative value.
Probative Value of Tendency Evidence
The probative value of tendency evidence should be balanced against its prejudicial effect. The prejudicial effect is the potential to unfairly prejudice the applicant by the evidence of the previous crimes being used against him in the current trial. The prejudicial effect could be high, as the jury may give too much weight to the tendency evidence and find the applicant guilty based on the evidence of his previous convictions rather than the evidence in this case.
[1] Uniform Evidence Act 1995 (Cth) ss 97, 101
The case of Wei v The Queen (2020) guides how to evaluate the probative value of tendency evidence.[2] The High Court of Australia held that the probative value of tendency evidence could not outweigh its prejudicial effect where the evidence was weak or of little importance in the prosecution's case. In this case, the prosecution argues that the evidence of the four incidents is essential to establishing the applicant's identity as the person who committed the crimes. However, it could be argued that the evidence is not particularly strong, as the applicant has denied committing the crimes, and the evidence relied on is circumstantial. Further, the evidence of the four incidents is of limited importance to the prosecution's case as there is other evidence that the applicant committed the crimes. The prosecution could rely on the CCTV footage of the robberies and identification evidence given by the victims.
Prejudicial Effect of Tendency Evidence
Therefore, it is arguable that the prejudicial effect of the tendency evidence outweighs its probative value. The tendency evidence could unfairly prejudice the applicant by leading the jury to find him guilty based on previous convictions rather than the evidence in this case. This could lead to an unfair trial, and the court must ensure that the evidence is not admitted if its prejudicial effect outweighs its probative value.
Admissibility of Tendency Evidence
The common law and statutory provisions govern the admissibility of tendency evidence. The common law rule against the admission of tendency evidence was modified by the Evidence Act 2008 (Vic), which provides for the admissibility of tendency evidence subject to certain conditions.[3] Section 97 of the Act allows the admission of tendency evidence if it has a significant probative value that is not substantially outweighed by any prejudice to the accused. The court must also consider whether the evidence is more prejudicial than probative and whether its admission would be unfair to the accused.
[2] Wei v The Queen (2020) 94 ALJR 129
[3] Evidence Act 2008 (Vic)
Conclusion
After thoroughly examining the evidence presented by the prosecution in this case, it is clear that the tendency evidence presented by them to establish the applicant's guilt for the four incidents should be excluded under section 97 of the Evidence Act. This is because it fails to meet the requirements of the test for admissibility. The evidence presented is not sufficiently similar to the charged offenses to prove a tendency, and the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the applicant.
One of the main reasons why the tendency evidence should be excluded is that it does not satisfy the similarity requirement. The prosecution argues that the evidence of the four other incidents shows a tendency of the applicant to engage in the type of behavior alleged in the charged offenses. However, the incidents are not sufficiently similar regarding the time, place, or circumstances in which they occurred. The charged offenses all took place within a specific timeframe and location, whereas the tendency evidence is spread out over a longer period and different locations. This lack of similarity makes it difficult to establish a tendency on the part of the applicant to engage in the behavior alleged in the charged offenses.
Additionally, the probative value of the tendency evidence is substantially outweighed by the danger of unfair prejudice to the applicant. The evidence has the potential to unfairly influence the jury against the applicant, as it suggests a pattern of behavior that may not be related to the charged offenses. The danger of unfair prejudice to the applicant is heightened because the evidence relies on the testimony of witnesses who may be unreliable or have the motive to lie. This further undermines the probative value of the evidence and highlights the risk of unfair prejudice to the applicant.
Even if the tendency evidence was admitted, we submit that the prosecution has not established that the applicant committed the four charged offenses beyond a reasonable doubt. The evidence relied upon is circumstantial and based on the testimony of witnesses who are either unreliable or have a motive to lie. This makes it difficult to establish that the applicant committed the offenses in question.
One of the prosecution's case inconsistencies is that the witnesses provide conflicting accounts of the events leading up to the charged offenses. Additionally, some of the witnesses have been shown to have the motive to lie, either to protect themselves or to implicate the applicant. This raises questions about the evidence's reliability and the prosecution's ability to establish the applicant's guilt beyond a reasonable doubt.
In conclusion, the evidence presented by the prosecution, in this case, does not meet the requirements for admissibility under section 97 and 101 of the Evidence Act. The tendency evidence is not sufficiently similar to the charged offenses to prove a tendency, and the probative value of the evidence is outweighed by the danger of unfair prejudice to the applicant. Moreover, even if the tendency evidence was admitted, the prosecution has not established that the applicant committed the four charged offenses beyond a reasonable doubt. The evidence relied upon is circumstantial and based on the testimony of witnesses who are either unreliable or have a motive to lie. Therefore, we respectfully request that the court dismiss the tendency evidence and find the applicant not guilty.