[2011] HCA 7 is noteworthy on three points.
The amazing legislation in Western Australia governing the admissibility of propensity evidence.
Section 31A(2) of the Evidence Act 1906 (WA) provides:
"(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."
It is para (b) that makes sensible people sit up and wonder. It posits a situation where fair minded people might think that something can be more important than the risk of an unfair trial. Normal people would think that when a risk of trial unfairness becomes unacceptably high, the risk must be avoided (by exclusion of the challenged evidence), regardless of what public interest there might be in adducing evidence of the defendant's guilt. That is, even people who appear to be guilty of the most hideous crimes are entitled to be tried fairly. But not, apparently, in Western Australia.Differing analyses of relevance
The facts of the case on appeal require attention to illustrate this point, but more generally the case illustrates how senior judges can differ on what is in issue in a case. The majority (Gummow, Crennan, Kiefel and Bell JJ) held that the evidence in contention was not relevant to any issue, and a retrial was ordered, whereas Heydon J dissented, holding that there were live issues on which the evidence had probative value.
Stratagems and spoils (smile, Bard)
Heydon J draws attention to the significance of concessions by the defence on the scope of admissible prosecution evidence. The majority did not consider that the case required examination of this.
A clever defence tactic is to spoil the prejudicial effect of detailed prosecution evidence by conceding that aspects of it are not in issue. Where there is no issue, the theory goes, the point is not a matter on which proof is needed, or indeed permitted. Evidence must be relevant to a matter in issue.
Heydon J recognised that this was not an appropriate case to explore these stratagems, as no such techniques were used here.
