Hughes v The Queen

Facts

The appellant was convicted of multiple sexual offences against two complainants. The prosecution relied on tendency evidence, adduced under the uniform Evidence Acts, concerning the appellant's alleged tendency to engage in sexual conduct with young persons in his care. The trial judge admitted the tendency evidence, and the Court of Criminal Appeal dismissed the appellant's appeal against conviction.

Issues

1. Whether tendency evidence under s 97 of the uniform Evidence Acts requires 'striking similarity' or some equivalent demanding threshold of similarity between the tendency acts before such evidence is admissible. 2. Whether the probative value of tendency evidence necessarily depends on the degree of similarity between the tendency acts and the charged acts.

Holding

The High Court held that s 97 of the uniform Evidence Acts does not impose a requirement of 'striking similarity' between the tendency acts and the charged acts as a precondition to admissibility; the statutory test is whether the tendency evidence has significant probative value, assessed by reference to all the circumstances including the nature, extent and frequency of the tendency.

Ratio decidendi

Under s 97 of the uniform Evidence Acts, tendency evidence is admissible if the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. No threshold requirement of 'striking similarity' between tendency acts and charged acts is imposed by the statute; probative value is assessed contextually and may derive from features other than close factual similarity, including the specificity of the tendency, the number of instances, and the background circumstances.

Obiter dicta

The plurality observed that, while similarity between tendency acts and charged acts will often be an important factor in assessing probative value, the weight to be accorded to any particular feature of similarity or dissimilarity depends on the particular tendency asserted and the issue to which the evidence is directed. The court also noted that the common law 'striking similarity' requirement was a product of a different evidentiary framework and should not be imported into the statutory scheme.

Significance

Hughes v The Queen is the leading High Court authority on the admissibility of tendency evidence under the uniform Evidence Acts, confirming that the 'striking similarity' test from the common law has no place in the statutory framework and that courts must apply the statutory 'significant probative value' standard assessed holistically.

Key authorities

• IMM v The Queen IMM v The Queen (2016) 257 CLR 300applied
• R v Pfennig R v Pfennig (1995) 182 CLR 461distinguished
• Propensity Evidence in Sexual Assault Cases — HML v The Queen HML v The Queen (2008) 235 CLR 334considered
• R v Sadler R v Sadler [2008] VSCA 198considered
• R v Fletcher R v Fletcher (2005) 156 A Crim R 308considered
• Director of Public Prosecutions v Boardman Director of Public Prosecutions v Boardman [1975] AC 421distinguished