High Court Decision Impacts Tendency Evidence in Victoria

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A recent High Court decision involving Australian actor Robert Hughes is likely to have significant effects for the admissibility of tendency evidence in Victoria.

By a 4-3 split, the majority held that close similarity in circumstance, method or other features was not essential for tendency evidence to be admissible. Instead, courts are to take a broad view when assessing the probative value of the evidence.

Opportunistic offending where there is a high risk of detection against a broad class of victims (such as young girls) could, depending on the issues in the case, have significant probative value and so be admissible as tendency evidence. This decision reverses the approach to tendency evidence which has been taken in Victoria and resolves the conflict in approaches that had existed between Victoria and New South Wales.

Applying this decision, the Victorian Court of Appeal has subsequently held that tendency evidence was wrongly admitted in a case involving a single complainant. Where there were no features of similarity in the offending, no circumstances displaying a brazen disregard of the risk of discovery and no secondary evidence to confirm the complainant's tendency evidence, the Court held that the evidence did not have significant probative value.

For more information, see our latest case summary

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