2023 Criminal Law CPD Series: Probative Value and Admissibility in the Criminal Trial: Focus and Holism

Substantive Law

CPD Points: 1.5

About

In determining whether challenged evidence is admissible, the trial judge is often required to assess its probative value. The orthodox view is that this assessment focuses on the strength of connection between the challenged evidence and the fact in issue. However, a distinct strand of High Court jurisprudence, running through the common law and the uniform evidence legislation – from Pfennig v The Queen (1995) 182 CLR 461 through Phillips v The Queen (2006) 225 CLR 303 to TL v The King (2022) 96 ALJR 1072 – requires a holistic approach to probative value. That is, the trial judge should assess the contribution of the challenged evidence together with other evidence. The High Court’s occasional holism introduces incoherence and uncertainty into the law. The interventionism of this approach may be prompted by concern over the prejudicial risks of propensity evidence; however, holism does not necessarily provide added protection. The High Court’s holism appears to be more the product of fallacious reasoning and inattention to the logic of proof. And it carries the risk that the trial judge, at the admissibility stage, will trespass on the jury’s fact-finding province.

Presenter

David Hamer is interested in the way criminal courts deal with evidence in determining whether to convict or acquit defendants. While often focusing on the detail of evidence law and criminal procedure, he takes an interdisciplinary approach. His research has regard to both the psychology and the logic of proof and draws on empirical research and formal probabilistic models. Further, his work explores how the pursuit of factual accuracy is affected by other sometimes competing concerns: efficiency, fairness, and the overarching need to provide a mechanism for settling disputes that retains public acceptance.

A particular area of interest to David is the regulation of child sexual assault prosecutions. For various reasons, these offences are inherently difficult to prove. Drawing on David’s work, the recent Royal Commission recommended that the prosecution be able to place greater reliance on the accusations of other alleged victims to corroborate the complainant’s allegation. David’s work in this area is ongoing and he is contributing to the development of appropriate laws to implement this Royal Commission recommendation.

Another area of interest to David is wrongful convictions. Despite the rhetorical emphasis placed on avoiding this searing injustice, they come to light quite regularly and there is good reason to believe that many more wrongful convictions are hidden from view. David is interested in the conceptual and methodological issues concerning definition and estimation of error rates. He researches the causes of wrongful convictions and how these should be addressed through law reform. He also focuses on obstacles to their correction and believes that a Criminal Cases Review Commission should be adopted as a crucial element of criminal justice infrastructure.