Special Bulletin 7 — August 2003
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
R v Ellis [2003] NSWCCA 319
Tendency and coincidence evidence s 101(2) Evidence Act 1995 prevails over common law test
A Court of Criminal Appeal of five judges was constituted in R v Ellis to resolve the conflict of authorities within that court as to whether in determining the admissibility of tendency and coincidence evidence, the trial judge is required to apply the common law test in Pfennig v The Queen (1995) 182 CLR 461, or the less demanding test in s 101(2) of the Evidence Act 1995.
The trial judge directed the jury solely in accordance with s 101(2). On appeal it was argued by the appellant that the Pfennig test should have been applied.
The Pfennig test is set out at p 482 in the following terms:
Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. [emphasis added]
On the other hand, section 101(2) of the Evidence Act provides:
Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. [emphasis added]
The court unanimously agreed that the statutory test applied. Spigelman CJ said at [89]:
The reasoning in Pfennig applied the “no rational explanation” test to a common law principle that probative value outweighs prejudicial effect. That reasoning is, in my opinion, inapplicable to a statutory test that probative value substantially outweighs prejudicial effect.