4.20 - Other forms of other misconduct evidence

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 Overview

  1. Part 4, Division 2 of the Jury Directions Act 2015 regulates jury directions on ‘other misconduct evidence’. This is defined as:
    1. coincidence evidence, as defined in the Evidence Act 2008;
    2. tendency evidence, as defined in the Evidence Act 2008;
    3. evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
    4. evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (Jury Directions Act 2015 s26).
  2. This topic examines the forms of ‘other misconduct evidence’ identified in paragraphs (c) and (d) above.
  3. See Tendency Evidence and Coincidence Evidence for further information on the admissibility and uses of those other forms of ‘other misconduct evidence’.

    Evidence of discreditable acts which are indirectly relevant or which provides context

  4. At common law, evidence of previous wrongdoing by the accused may be admissible as indirectly relevant to show that the accused’s acts were for a guilty purpose, rather than an innocent purpose. This might include:
  5. These forms of evidence have been treated at common law as ‘relationship evidence’ falling outside the requirements of the tendency rule and the coincidence rule and may qualify as ‘other misconduct evidence’ under paragraph (c) of the definition.
  6. In addition, evidence that provides the jury with essential background information that allows the jury to assess and evaluate the other evidence may be admissible at common law as ‘context evidence’ (see, e.g. R v AH (1997) 42 NSWLR 702).
  7. Such evidence may help the jury assess and evaluate other evidence given in the case in a complete and realistic context. In particular, the evidence can be used:
    1. to explain the complainant’s conduct or state of mind. For example, such evidence may explain conduct that would otherwise seem surprising or unlikely, such as submitting to the accused’s demands or failing to complain about the accused’s actions (B v R (1992) 175 CLR 599; R v Beserick (1993) 30 NSWLR 510; Rodden v R [2008] NSWCCA 53; KTR v R [2010] NSWCCA 271).
    2. to explain the accused’s conduct or state of mind. For example, the history between the accused and the complainant may explain why the accused felt able to act in a particularly brazen manner (R v Josifoski [1997] 2 VR 68; Gipp v R (1998) 194 CLR 106; c.f. Qualtieri v R [2006] NSWCCA 95 at [121]). Similarly, previous exposure to the criminal law may demonstrate that the accused knew or was reckless about some matter, such as prescribed quantities for drug offences, dangers of accepting imports from unknown persons, or the $10,000 threshold for reportable transactions under the Cash Transactions Reports Act 1988 (Ivanoff v R [2015] VSCA 116; Lin v R [2018] VSCA 100).
    3. to explain the circumstances of the alleged offence. This may prevent the jury from forming a false impression that the complainant’s allegations arose ‘out of the blue’. That is, it may remove the implausibility that might otherwise be attributed to the complainant’s account due to the way each party is said to have behaved if the conduct alleged were thought to be isolated events (R v Leonard (2006) 67 NSWLR 545 at [48]-[52] per Hodgson JA; R v Loguancio (2000) 1 VR 235; KRM v R (2001) 206 CLR 221; B v R (1992) 175 CLR 599).
  8. There is not yet any guidance on the meaning of the phrase ‘other discreditable acts … that are not directly relevant’. The definition of ‘other misconduct evidence’ appears designed to have a wide scope and operate where there is a risk that the jury may misuse the evidence and decide the case based on the prejudicial quality of the evidence rather than its legitimate probative purpose (see Jury Directions Act 2015 s27).
  9. Based on the explanatory material, the section appears designed to cover the forms of evidence previously recognised at common law as ‘relationship evidence’ and ‘context evidence’ (see Jury Directions Bill 2015, Explanatory Memorandum, clause 26.
  10. Where evidence would be considered ‘relationship evidence’ at common law but does not fit within the definition of ‘other misconduct evidence’, judges will need to develop suitable directions based on the submissions of the parties and the needs of the case and may be informed by Division 2 of Part 4 of the Jury Directions Act 2015 (see, for example, Lin v R [2018] VSCA 100; R v Iuliano [1971] VR 412; Wilson v R (1970) 123 CLR 334).
  11. In doing so, judges must take care to avoid giving directions based only on the label applied to the evidence, rather than the issues in the case, the relevance of the evidence and any risk of misuse (see BBH v R (2012) 245 CLR 499 per Hayne J).

    Admissibility of ‘Other Misconduct Evidence’

  12. Under the Evidence Act 2008, evidence is admissible if it is relevant (directly or indirectly) to a fact in issue (Evidence Act 2008 s56).
  13. This will depend on the nature of the evidence and the issues in the case. For example, evidence of previous acts of violence when one of the parties is intoxicated may not be relevant to a case where there is no evidence of intoxication (R v Lubik [2010] VSC 465).
  14. The court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused (Evidence Act 2008 s137).
  15. The court may also exclude or limit the use of such evidence using the general discretions contained in Evidence Act 2008 ss135-136.
  16. The party tendering the evidence must precisely identify the uses of the evidence (see above), and demonstrate how the evidence is relevant to issues in the case (Gipp v R (1998) 194 CLR 106; Tully v R (2006) 230 CLR 234; HML & Ors v R (2008) 235 CLR 334).
  17. Evidence of ‘relationship’ or ‘context’ is admissible under the Evidence Act 2008 provided it meets the test of relevance. The evidence does not need to satisfy the tendency rule or the coincidence rule (DPP v Martin [2016] VSCA 219 at [105]-[106]; R v Murdoch (2013) 40 VR 451 per Redlich and Coghlan JJA; Priest JA contra).
  18. ‘Context evidence’ must be admitted only with great caution.[1] While such evidence may be relevant, it may only be minimally probative and may be highly prejudicial. A judge must carefully weigh the probative value of context evidence against the prejudicial effect of disclosing unlawful or disreputable conduct of the accused on other occasions (Tully v R (2006) 230 CLR 234; R v AN (2000) 117 A Crim R 176; R v Marsh [2000] NSWCCA 370).
  19. However, in other cases, context evidence may be evidence of 'cogency or force', such that the exclusion of context evidence could ground an interlocutory appeal on the basis that the exclusion of the evidence substantially weakens the prosecution case (DPP v Martin [2016] VSCA 219 at [116]-[117]).
  20. The context and relationship evidence must not relate to a state of affairs which is too remote in time from the alleged offending. The court must consider the particular circumstances and the length of delay between the last observed event and the alleged offending (R v Iuliano [1971] VR 412; R v Lubik [2010] VSC 465; R v Tsingopoulos [1964] VR 676; Ellis v R (2010) 30 VR 428; R v Basten [2009] VSCA 157).
  21. In general, it is more difficult for the Crown to establish that a single incident is relevant as context evidence, compared to multiple acts (compare CA v R [2017] NSWCCA 324 at [79] and R v Young (1996) 90 A Crim R 80).
  22. In some cases, evidence of ‘relationship’ or ‘context’ may be admissible for some charges and inadmissible for other charges. The judge must examine the relevance, probative value and prejudice separately for each charge to determine whether the evidence is relevant to a fact in issue (R v McNamara [2002] NSWCCA 248).
  23. Evidence of prior convictions should generally not be admitted as relationship or context evidence. Due to the extreme prejudice attaching to such evidence, it is unlikely to be admissible on this basis even if it is indispensable to the prosecution case (Mokbel v R [2010] VSCA 354).
  24. Evidence of other sexual activity between the complainant and the accused can be admissible as context evidence, provided it meets the tests of relevance and is not excluded under Evidence Act 2008 s137 (DPP v Martin [2016] VSCA 219. See also R v Bauer [2018] HCA 40).
  25. The fact that other misconduct evidence does not need to be proved to the criminal standard is not a relevant source of unfair prejudice for the purpose of determining the admissibility of the evidence (DPP v Martin [2016] VSCA 219 at [113]).
  26. In determining the relevance of other misconduct evidence led as context evidence, it will not be necessary to consider the accused's criminal responsibility. Issues such as doli incapax are not relevant to the admissibility of context evidence, because the relevance of the evidence must be assessed from the perspective of the victim, not the accused (DPP v Martin [2016] VSCA 219 at [110]-[111]).
  27. Where evidence is not led to enable tendency or coincidence reasoning, it is not subject to the admissibility requirements in Evidence Act 2008 ss97, 98 or 101 (FDP v R (2008) 74 NSWLR 645). However, the evidence cannot be used to prove a tendency or a coincidence (Evidence Act 2008 s95).

    Determining the Relevance of Evidence

  28. It is important for judges to determine whether the evidence is sought to be admitted and used as ‘relationship evidence’, ‘context evidence’, tendency evidence’ or ‘coincidence evidence’, and if so, how the evidence is relevant to the facts in issue. These determinations will affect the admissibility of the evidence, how the jury may use the evidence and the directions the judge may need to give.
  29. As it can be difficult to differentiate between these types of evidence, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see, e.g., HML & Ors v R (2008) 235 CLR 334 per Hayne J).

    Directions About Other Misconduct Evidence

  30. The need for any directions about other misconduct evidence will depend on whether a direction is sought or whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss12, 14, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  31. Where ‘other misconduct evidence’ is admitted, the content of directions is specified in Jury Directions Act 2015 Part 4, Division 2. In other cases, the judge will need to tailor a direction to the needs of the case.
  32. Under Jury Directions Act 2015 Part 4, Division 2, when giving directions on other misconduct evidence the trial judge must:
    1. identify how the evidence is relevant to the existence of a fact in issue; and
    2. direct the jury not to use the evidence for any other purpose; and
    3. direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
    4. if the evidence only forms part of the case against the accused, inform the jury of this fact (Jury Directions Act 2015 s27(2)).
  33. In giving the direction, the judge does not need to:
    1. explain what the jury should consider in deciding whether to use the evidence;
    2. identify impermissible uses of the evidence;
    3. refer to any other matter (Jury Directions Act 2015 s27(3)).
  34. It is not sufficient for the judge to simply say that the evidence provides the jury with the context for the offences or evidence of a relationship. The judge must explain how such information is relevant to the facts in issue (R v Nieterink (1999) 76 SASR 56).
  35. Where evidence is led to show the context of the alleged offending, the judge should tell the jury that they may use the evidence to place the offences within a complete and realistic context. This may assist the jury to appreciate and evaluate other evidence in the case or make that evidence intelligible. Depending on the nature of the case, the evidence may do this by:
  36. Any directions that suggest that ‘context evidence’ may support a complainant’s credibility must be carefully limited:
  37. No particular form of words is required for the direction. It must be tailored to the demands of the case, and must be clear, precise and directed (R v Grech [1997] 2 VR 609; HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).
  38. Judges should avoid using the term ‘uncharged acts’ when describing other misconduct evidence, as it may invite speculation about why no charges were laid (HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206; DPP v Martin [2016] VSCA 219 at [101]).

    Standard of proof

  39. As other misconduct evidence is circumstantial evidence, it will not need to be proved beyond reasonable doubt (Jury Directions Act 2015 s61).
  40. The Jury Directions Act 2015 expressly overrides common law to the contrary, including the rule attributed to R v Sadler (2008) 20 VR 69 (Jury Directions Act 2015 s62).
  41. Where evidence is relied on as context evidence, the judge should not give any instruction on the standard of proof (DPP v Martin [2016] VSCA 219 at [113]).
  42. Judges must not instruct the jury that they only need to be satisfied of the evidence on the balance of probabilities (R v Werry [2009] VSCA 94; R v FJB [1999] 2 VR 425; R v Loguancio (2000) 1 VR 235; Gipp v R (1998) 194 CLR 106).

    Directions where other misconduct evidence adduced by the accused about a co-accused

  43. Where ‘other misconduct evidence’ is adduced by an accused about a co-accused, the prosecution or the co-accused may request a direction about that evidence (Jury Directions Act 2015 s28).
  44. In giving a direction about that evidence, the trial judge must
    1. identify how the evidence is relevant to the existence of a fact in issue; and
    2. direct the jury not to use the evidence for any other purpose; and
    3. direct the jury that it must not decide the case based on prejudice arising from what it has heard about the co-accused (Jury Directions Act 2015 s28(2)).
  45. In giving the direct, the judge does not need to:
    1. explain what the jury should consider in deciding whether to use the evidence as coincidence evidence;
    2. identify impermissible uses of the evidence;
    3. refer to any other matter (Jury Directions Act 2015 s28(3)).

    Warning Against Tendency Reasoning

  46. When ‘other misconduct evidence’ which is not ‘tendency evidence’ is adduced, defence counsel may request a warning that the jury not use the evidence as tendency evidence (Jury Directions Act 2015 s29).
  47. See Tendency Evidence for information concerning the content of such a warning.

    Timing of the Charge

  48. Short directions on the use of relationship evidence which are consistent with Jury Directions Act 2015 Part 4, Division 2 should be given at the time the evidence is led. Detailed directions may then be given in the final charge (see, e.g., Jury Directions Act 2015 s10(2); R v Beserick (1993) 30 NSWLR 510; R v Grech [1997] 2 VR 609; Qualtieri v R [2006] NSWCCA 95).

    Notes

[1] It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (R v LRG (2006) 16 VR 89; Tully v R (2006) 230 CLR 234; R v GAE (2000) 1 VR 198).

Last updated: 2 October 2018

In This Section

4.20.1 - Charge: Other Forms of Other Misconduct Evidence

4.20.2 - Charge: Other forms of Other Misconduct Evidence (Evidence about a co-accused)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings