The Law Commission

 


PART X THE EXPLANATORY EXCEPTION

THE DEFECTS OF THE CURRENT LAW

Res gestae and background evidence

10.1      The present law is that evidence which falls within the "res gestae" or is "background" evidence may be admitted as evidence. It does not therefore have to be examined to determine whether it can be described as "similar fact" evidence. In the consultation paper we identified four "indicators" which may enable evidence to avoid the normal exclusionary rule on the basis that it is background evidence.^[1] They are as follows:

(1) the evidence may be close in time, place or circumstances to the facts or circumstances of the offence charged;^[2]

(2) the evidence may be necessary to complete the account of the circumstances of the offence charged, and thus make it comprehensible to the jury;^[3]

(3) the accused may have had a relationship with the victim of the offence charged, and the previous misconduct evidence may relate to this victim rather than the victims of other offences;

(4) the evidence may assist in establishing the motive behind the offence charged.^[4]

10.2      Background evidence is admitted because it is "so closely entwined and involved with the evidence directly relating to the facts in issue that it would amount to distortion to attempt to edit it out".^[5] However, highly prejudicial evidence can be admitted as "background" without any adequate assessment of its prejudicial effect.^[6] To quote McHugh J:

Great care needs to be taken … in determining whether evidence, disclosing other criminal conduct, is evidence concerning the res gestae or is merely circumstantial evidence. By applying labels such as "one transaction", "connected series of events", "system", "history", "completeness" and "part of one chain of relevant circumstances", evidence which is in truth purely circumstantial improperly avoids the tests of admissibility which the modern cases expound.^[7]

OUR ANALYSIS

10.3      We have concluded that there are two different reasons for admitting such evidence. Some evidence (res gestae) is so inextricably linked to the facts about the offence charged, by reason of its close connection with them in time and space, that it should be automatically admissible; on the other hand, some evidence, though not forming part of the alleged facts, is nonetheless linked to those central facts by virtue of its force in making them comprehensible. That evidence should, in our judgment, have to pass a test of admissibility.^[8]

Evidence which is part of the narrative of the offence

10.4      While it could be argued that all prejudicial character evidence should be prima facie inadmissible, in the words of McHugh J, some evidence "is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect".^[9] It would, for example, be very strange if evidence of an assault committed in the course of a rape, but not separately charged, were to be treated as prima facie inadmissible; or if, on a charge of murder by firing a bullet through a window, the prosecution had to seek leave to adduce evidence that the defendant had not only killed the deceased but also broken the window; or if, on a charge of burning down a hostel for ex-prisoners, leave were required to prove that the defendant was a resident of that hostel.^[10]

10.5      The fact that a rapist committed an assault in the course of the rape may of course be relevant to a fact in issue: for example, it may suggest an absence of consent. But, even if that fact has no real bearing on any issue in the case – because the issue is not whether the complainant was raped but whether it was the defendant who did it – it would in our view be unrealistic to suggest that the prosecution may not prove that fact without first satisfying the court that the interests of justice require that it be allowed to do so. The assault is relevant not for any light it throws on the defendant's character, and thus on the likelihood that he committed the rape, but because it is part and parcel of what is alleged.^[11] Therefore we believe that it should be admissible without more, and not required to fall within an exception to the exclusionary rule.

10.6      Under our recommendations, this is achieved by the rule that bad character evidence does not require leave if it has to do with the alleged facts of the offence charged. Evidence which forms part of the narrative of the offence (approximating to res gestae, or indicator (1) in paragraph 10.1 above) will inevitably satisfy this requirement, and therefore does not require leave to be adduced.^[12]

Explanatory evidence

10.7      The probative value of a fact is its value in proving the truth or falsity of a fact in issue. Often, however, the value of the kind of fact which provides essential background is not that a specific fact in issue can be inferred from it, but simply that if the fact-finders did not hear of it they would find it harder to understand the nature of what is alleged. Strictly speaking, it has explanatory value, not probative value. Under the present law such evidence is admitted as "background" evidence without any assessment of its potentially prejudicial effect. The obvious examples of "explanatory evidence" arise in the contexts of complex financial fraud and abuse of one person by another over a long period.

X sets up a company, as sole shareholder and executive director. Its ostensible purpose is to make investments on behalf of clients. X asks D to be a non-executive director. X tells D that the company will seek to "minimise" corporation tax payments, and D will occasionally be asked to sign off on misleading accounting documents to that end. Over a number of months, both X and D sign off on false accounting documents. Then X disappears overnight. The company's client account has been cleaned out. D is charged with false accounting and conspiracy to defraud the company's clients. D pleads guilty to the false accounting charges, and the convictions are recorded. However, D pleads not guilty to conspiracy, claiming to have been unaware of X's fraud on the clients. At D's conspiracy trial, the prosecution will need to refer to D's previous convictions and the wrong-doing that lay behind them, because the false accounting documents were used to effect the fraud on the clients.

D is charged with repeated sexual abuse of his sister. In order to explain why she did not turn to her parents to be protected from her brother, the prosecution has to explain the history of abuse within the family, which shows the defendant as a victim of abuse himself as well as a perpetrator.

10.8      Where the evidence falls outside the central facts, however, and therefore under our scheme requires leave to be admitted, we do not think it should be exempted from the principles applicable to such evidence merely because it satisfies one or more of indicators (2)–(4) in paragraph 10.1 above. Those principles dictate that leave should not be given unless the evidence has substantial explanatory value. The court must be satisfied that, without the evidence, the court or jury would find it impossible or difficult properly to understand other evidence in the case and that its value for understanding the case as a whole is substantial.^[13] This test applies whether the evidence relates to a defendant or anyone else.^[14]

10.9      Where the evidence is of a defendant's bad character, however, we recommend an additional test to be satisfied, namely that the interests of justice require it to be adduced notwithstanding any prejudicial potential it might have.

10.10      The test for evidence of this kind, where it applies to a defendant, has the same structure as for incriminatory evidence. The only difference from that test is that the value of the evidence is not, strictly speaking, "probative", in that it does not directly prove anything; it explains other evidence. It is therefore not the probative value of the evidence that must be weighed against the risk of prejudice, but its value for understanding the case as a whole.

10.11      The difference between our policy and the current law is that, under the current law, if evidence of the defendant's other misconduct comes into the category of "background" evidence, it is admitted without any assessment of its prejudicial effect, whereas under our recommendation, the risk of prejudice does have to be taken into account. In our view, this requirement will secure a fair, rational and consistent approach to the inclusion of such evidence.

10.12      We recommend that leave may be given to adduce evidence of the bad character of a defendant if it has substantial explanatory value and the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.^[15]

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Note 1   Para 2.81. The case law is discussed in some detail at paras 2.70 – 2.84 in the consultation paper.    [Back]

Note 2   SeeArchbold, para 13–35: “the evidence must have clear probative value and the more remote from the date of the offence the incident sought to be proved is, the clearer the probative value must be.” See also Berry (1986) 83 Cr App R 7, 10, per Watkins LJ, referred to at para 2.75 of the consultation paper, and Sidhu (1994) 98 Cr App R 59.    [Back]

Note 3   This is taken from the Court of Appeal’s judgment (per Purchas LJ) in the unreported case ofPettman, 2 May 1985, CA No 5048/C/82: “where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.” This passage is also referred to in Fulcher [1995] 2 Cr App R 251, 258D–E, per Kennedy LJ, and in Stevens [1995] Crim LR 649.    [Back]

Note 4   See Ball [1911] AC 47, 68.    [Back]

Note 5   Cross and Tapper, p 343.    [Back]

Note 6   Eg, Fulcher [1995] 2 Cr App R 251 in which the Court of Appeal held it was right that, where the defendant was charged with the murder of his infant son, evidence of the defendant’s previous violence towards the victim was admissible as background as evidence of motive. Its prejudicial effect was not taken into account. The Court of Appeal commented at p 258, “Of course, a court always has power to exclude evidence which it finds to be more prejudicial than probative,” but no application was made for it to be excluded on that basis, and the court thought any such application would have been unlikely to succeed.    [Back]

Note 7   Harriman v The Queen (1989) 167 CLR 590, 633–634.    [Back]

Note 8   The ALRC wrote that surrounding detail puts a narrated transaction in context, assisting evaluation of the truth of the narration and thus is “indirectly” relevant to the issues. Information which aids in the understanding of other relevant evidence is also relevant. ALRC Report, vol 2, para 59. We think that the evidence described in the first sentence, and the evidence described in the second, should be handled differently.     [Back]

Note 9   Harriman v The Queen (1989) 167 CLR 590, 633.    [Back]

Note 10   Cf Neale (1977) 65 Cr App R 304. In our Hearsay Report we referred to the difficulties created for witnesses giving oral evidence when they are stopped, in the middle of a natural account of an event, for fear that they are about to break a rule of evidence. See Law Com 245, paras 12.13 – 12.14 and paras 7.74 – 7.75 of the Hearsay Consultation Paper No 138 (1995). If this kind of evidence was prima facie inadmissible, more of those interruptions would occur.    [Back]

Note 11   As Professor Murphy wrote in his response, “it is inevitable that some evidence involving an aspect of the accused’s character should be introduced, butthe evidence is admitted, not because it involves character, but despite the fact that it does so”.    [Back]

Note 12   Clause 2(1) of the draft Bill. See paras 8.31 and 8.32 above.    [Back]

Note 13   Clause 4 (a) and (b), cl 7 (1), (2) and (3).    [Back]

Note 14   For its application to non-defendants, see Part IX above.    [Back]

Note 15   This recommendation is given effect by cl 7 of the draft Bill.    [Back]