Hemming on ‘Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?’

Dr Andrew Hemming, a Senior Lecturer in the USQ School of Law and Justice, has published a new article titled ‘Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?’ The article appears in Volume 44 of the Criminal Law Journal.  Here is the abstract:

"Australia has five tests for the admission of similar fact or propensity evidence as it is known at common law, or alternatively coincidence or tendency evidence as it is known under the Uniform Evidence Legislation. Each test differs according to the difficulty or “bar” the Crown faces in obtaining the court’s permission to adduce such potentially damaging evidence. This article will weigh the merits of each of the five tests in an endeavour to establish whether there is any prospect of a model provision, such that a uniform test across Australian criminal law jurisdictions for the admission of similar fact or tendency evidence could be adopted, aside from child sexual offences and domestic violence offences. It is acknowledged that where to set the bar of
admission is both a moral and political one, weighing the moral harm of wrongful conviction against the public interest in convicting offenders (leaving aside local factors such as whether jury trials are mandatory or whether joint trials are common). The criteria for determining the test for a model provision will be considered in Part III, which if adopted will require a shift in the weight ascribed to these competing considerations in some jurisdictions."