Admissibility of Propensity Evidence in Paedophilia Cases

Abstract

Application of the propensity evidence rule in paedophilia cases starkly highlights the tension between the two competing principles underlying the rule. Paedophilia is an area where the danger of prejudice is at its highest. At the same time the probative significance of propensity evidence may be great. In their habitual offending behaviour, paedophiles seek to establish opportunity and overcome the child’s resistance to the sexual acts, typically through a long and drawn out grooming process in a manner calculated to minimise the risk of detection. Evidence of similar misconduct of the accused may be highly probative in establishing this pattern of paedophilia behaviour, and a proper factor to be taken account of in balancing probative value against risk of prejudice. In this context the Hoch/Pfennig test for admissibility is unduly strict. A more satisfactory balance between probative value and danger of prejudice may be achieved under the provisions of the uniform Evidence Acts and the pre-Hoch/Pfennig common law contained in s 398A of the Crimes Act 1958 (Vic).