Tendency evidence - proof and cross-proof: DPP v Roder (A Pseudonym) [2024] HCA 15

When a trial involves multiple charges against one defendant, and they are of a similar nature, an issue may arise over when evidence relating to one or more of those charges can be used as contributing to proof of one or more other of the charges.

If evidence about one offence is relevant to proof of another charge, that can be because it shows that the defendant has a propensity or a tendency to act in the way charged.

I use the synonym [23] propensity out of habit: I have a tendency to say propensity when I could equally say tendency.

Do the facts that allegedly show a propensity have to be proved beyond reasonable doubt before they can be used towards proof of another charge?

Further, what is the correct way to use propensity evidence in reasoning towards a verdict on a charge in respect of which the propensity evidence is admissible? Do charges have to be worked through sequentially and then re-worked as verdicts are reached and propensity evidence is accumulated?

In DPP v Roder (A Pseudonym) [2024] HCA 15 a bench of 7 justices delivered a unanimous judgment addressing issues that I have summarized in these questions, except here there was agreement between counsel on the cross-admissibility of the propensity evidence (the issue mentioned in my first paragraph, above). [6] The context is evidence legislation in the State of Victoria, but this judgment also has wider relevance.

Of interest to criminal procedure buffs and law reformers is the interlocutory nature of this appeal: the trial judge had issued a ruling about how the jury would be directed about the use of propensity evidence, and this ruling was the subject of the appeals. Plainly, this is a sensible method of preventing errors that could require orders for retrials.

What was decided here? No standard of proof applies to the issue of whether the evidence shows that the defendant has a propensity to act in the way charged. [31] There is one exception to this: where the existence of the propensity is an essential link in a chain of proof leading to the verdict. In such a case, the propensity would have to be proved beyond reasonable doubt unless legislation provides to the contrary. [24]

Here, the legislation does provide to the contrary, so the facts alleged to show a propensity never have to be proved beyond reasonable doubt. A different legislated position exists in New South Wales, as described at [29].[1]

Roder settles the question, whether a standard of proof applies to propensity evidence, that had been unclear at common law in Australia: see HML v The Queen [2008] HCA 16 (noted here on 26 April 2008) and Grooby v R [2018] NZSC 114. Now, the starting point for deciding issues concerning propensity evidence is always the relevant legislation.

But the more general relevance of this decision is on the use of propensity evidence where it arises from multiple charges. This is addressed at [26] where the Court endorsed the reasoning in JS v The Queen [2022] NSWCCA 145 at [43]:

“It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. …”(emphasis added by the HCA)

Points made here are mentioned at [27] and [28]. These are the demonstration of the lack of circularity and the confining of the use of the standard of proof to the verdict.

So, from the summary at [37], if the fact-finder is satisfied on the basis of all the evidence of the relevant propensity (gleaned from the evidence admissible on each charge) that the propensity exists then it can be used in deciding whether the likelihood is increased that the defendant committed the offence the fact-finder is considering. The complexity arising from a gradual emergence of propensity evidence as charges are worked through sequentially is thus avoided.

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[1] If, like me, you came to law after a degree in science, you will, at least at first impression, be horrified that standards of proof are not more widely used and are not specified precisely in terms of probabilities. After all, and on reflection, a trial at law is all about conditional probabilities and the comparison of two hypotheses. That is, given this item of evidence what is the probability of each hypothesis (guilt or innocence), and given all these items of evidence, what is the overall probability of each? And when are the probabilities sufficient to support a verdict of guilty? When is the probability of something high enough for me to be satisfied of it? Being satisfied of something in law usually means having decided to accept the existence of that thing. And usually, for example in relation to items of evidence as opposed to the ultimate verdict, acceptance means acceptance on the balance of probabilities. But courts can differ over whether the balance of probabilities is a fixed standard or whether it changes according to the seriousness of the consequences of being satisfied of the existence of the thing.

Conspiracy and the scope of the agreement: DPP(Cth) v Kola [2024] HCA 14

Identifying the scope of an agreement is essential when considering the law of conspiracy. This is illustrated in DPP(Cth) v Kola [2024] HCA 14. The statutory context is important, particularly if it provides that where an offence has an element of absolute liability the conspiracy to commit that offence retains absolute liability as to that circumstance. [1]

In Kola the charge was conspiracy to import a commercial quantity of cocaine. For the full offence, importation of a commercial quantity of cocaine, absolute liability applied to the amount of the drug. That is, it was not necessary to prove that the defendant knew of the amount of drug that was imported. One of the issues in this appeal was whether liability for the corresponding conspiracy required an intention to import that quantity of the drug.

Consistently with R v LK, [2] the Court held that under the relevant legislation proof of the agreement to commit the offence did not include proof that the parties to the agreement intended to import a commercial quantity of cocaine. [25]

The illustration given at [29] is helpful in that it shows the importance of identifying the scope of what was agreed. The facts might be such that by using the agreed method of importation it would not be possible to import a commercial quantity of the drug. Further, if the agreed method of importation was departed from by other co-conspirators so that a commercial quantity of the drug could be imported, the defendant would not then be a party to the new agreement to import a commercial quantity of the drug. But if the defendant had agreed to a method of importation that allowed for a commercial quantity of cocaine to be imported, the defendant would be liable for the conspiracy to import a commercial quantity of the drug because of the absolute liability provision.

And this is where the second aspect of this appeal comes into play. The charge was conspiracy because, as is usually the case with conspiracy charges, the full offence was not committed. [3] It was still necessary to prove the scope of the agreement. Here, from the proven facts, it was obvious that there was reasonable proof that a commercial quantity of the drug was intended to be imported [45], and consequently that evidence of the acts of co-conspirators was admissible to prove that the intended course of conduct would, had it been carried out, have resulted in the importation of a commercial quantity of the drug. Again, whether the defendant knew or intended this was irrelevant because of the absolute liability provision, but it was relevant that he knew how the importation was to occur.

A puzzling point occurs in Kola at [25]:

“… to establish the offence of conspiring to import a commercial quantity of a border controlled drug, the prosecution must prove, inter alia: that the accused participated in or was a party to an agreement to import a commercial quantity of a border controlled drug; that the accused intended to participate in or be a party to such an agreement; and that the accused and another person intended that a border controlled drug would be imported pursuant to the agreement, that is, they knew or believed that a border controlled drug would be imported pursuant to the agreement.” [emphasis added]

As a result of the agreement having to be to import a commercial quantity of the drug (this was the way the Court stated the first element), the Court identifies “an obvious tension” [27]. The resolution given in that paragraph is somewhat obscure, particularly as the Court approved the trial judge’s direction which had omitted reference to commercial quantity when describing the first element [39]-[40]. The real issue was whether the scope of the agreement was such that, if executed, a commercial quantity of the drug would have been imported [41]. This would be a correct way of putting the first element.

Here, there was no suggestion that the co-conspirators had gone beyond what Mr Kola had agreed to [46], and the circumstances indicating the scope of his agreement are mentioned at [13].

In considering the law of conspiracy and the relevance of this decision in other jurisdictions, differences in legislation must be assessed, as must the particular circumstances bearing on the scope of the alleged agreement.

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[1] Here the Court was considering s 11.5 and 307.1 of the Criminal Code (Cth). For s 11.5, see [20], and for a description of s 307.1 see [24].

[2] R v LK [2010] HCA 17. See my note dated 26 May 2010. LK is remarkable for its use of the word epexegetical at [133]. Don’t play Scrabble against those guys. LK holds that if an offence can be committed recklessly, a conspiracy to commit that offence requires intention or knowledge [141]. The relevant element there was the fact that money was the proceeds of crime. Another element, not relevant to that decision, was that the amount of the money was $1m or more and this was an element to which absolute liability applied: Kola at [23].

[3] Often, defendants are charged as conspirators even though the full offence has been committed, for example where supplies of a drug have occurred.