G'day everybody and welcome to week 10 of Laws 13010 Evidence and Proof. I'm Anthony Maranac and I've got to start this week with an apology because last week I said that we would be looking at opinion evidence this week and those of you who've been desperately hanging out all week to get your fix of opinion evidence this week are going to be terribly upset to learn that we're actually going to be looking at circumstantial and character evidence. But mea culpa, I'll bring you the lecture on opinion evidence next week. This week we are going to be looking at circumstantial and character evidence and for me this is actually one of the most interesting topics that we deal with in this subject. What we're going to look at is what circumstantial evidence actually is and how it works. We'll look at what's called the Shepard test to determine whether circumstantial evidence can be used. And then we'll look at a particular type of circumstantial evidence that is commonly used in the courts and that's evidence that relates to the character or otherwise relates to the circumstances of the defendant we're going to look at various types first we'll look at what's called similar fact evidence and then we'll look at propensity evidence and finally we'll look at tendency evidence. Doesn't matter that you don't understand what they are at this end of the lecture. Each of them however is a different type of evidence that relates to more or less to what sort of person the person who's been charged actually is. So let's start with circumstantial evidence. The definition of circumstantial evidence comes from a case called Sheppard and the Queen which is really the key case for circumstantial evidence. The definition is that circumstantial evidence is evidence of a fact or facts from which the court is asked to infer other facts. That is not helpful. That is the legal definition but what it really means is that you've got a fact that's being put before the court. And that fact itself does not tell us anything about the offence or the cause of action. It's not one of the elements of the fact or the cause of action. But it allows the court to make some assumptions or some inferences that bring it very close to being able to find other facts that are directly related to the crime or the cause of action. Let's turn that into English. we have a circumstantial fact that someone was seen driving away from burgled premises in the middle of the night at high speed the police stop that person and they find housebreaking tools in the boot neither of those two facts on their own tell us anything about whether or not the person in that car actually committed the burglary that was conducted earlier in the evening but it's a pretty strong inference So the court would be asked to infer that because we have someone driving away from a burgled premises in the middle of the night at high speed with burgling tools in the back of their car, the court would be asked to infer that they were probably the person who entered the dwelling of another and therefore committed the offence of break and entry. So you can see circumstantial facts don't directly point to the crime. they indirectly point to the crime. They make it more likely that what's being proposed to the court is actually true. All of this will seem even more clear once we look at some more examples. I'm going to run through four quickly. Two of them, Plomp and Chamberlain, will become more familiar to you as we go through the rest of the case and they're definitely more familiar from the notes but let's have a pen sketch of a few different cases at this point so that you can see what I mean when I'm carrying on about facts that indirectly point to an element of the offence. The first one, the classic early case is known as Hodge's case. It came from the 1830s. What happened in this case was that Hodge was seen in the laneway where a lady was last seen alive before she was robbed and murdered. There was a significant quantity of money taken away from this lady and it turned out that she knew Hodge and had spoken to him not too long before she was robbed and murdered. Later on, In that same day, a couple of miles distant, Hodge was observed burying a quantity of money and that quantity of money was approximately the same amount that the victim was supposed to have had robbed from her. Now you can see the inference there pretty obviously. The inference is that those two events are pretty coincidental. it's much more likely that the fact that hodge having been seen with a victim who has a certain amount of money and who is later seen burying that certain amount of money is an irresistible inference there that he probably killed and robbed the person But is it such a strong inference? Can we come up with another story that might explain it? Could it be for instance that Hodge might have come across her immediately after she had been murdered, might have seen a satchel full of money and thought, hey I'll have a piece of that, took the money, ran away, had some time to think about it and thought, well you know what, if anyone catches me with this money they're going to think I killed her, and so he goes out and digs a big hole and tries to get rid of the money. That's an alternative narrative that might explain those same events. So you can see... The circumstantial facts lead us in the direction of thinking about what might happen, but they don't actually give us anything conclusive. The second case is Plomp. Plomp went swimming in the surf with his wife in the early 1960s. Both of them were quite strong swimmers. Both of them were used to swimming in the surf. Only Mr. Plomp came out. Mrs. Plomp was carried away by the surf and was washed up, drowned some time later. He was charged with her murder. And the circumstances which were brought to the court were first that she was quite a strong swimmer and that the conditions had been relatively benign and that there was no reason that could be seen for her to have drowned. But then they also brought before the court the fact that Mr. Plomp had been conducting an affair with another woman and had planned to marry that other woman. Now remember this was the 1960s, well before no-fault divorce. if he wanted to marry this other woman then one of the easiest ways to do so would have been to get wife number one out of the way so they brought both of those facts before the court both of those circumstantial facts to the court and asked the jury to conclude that it was actually more likely that he had murdered his wife rather than that she'd come to a misadventure and the jury convicted him on that basis The third case is probably one of the most famous, if not the most famous criminal trial that's ever been conducted in Australia and that's the case of Chamberlain and the Queen which was concluded in 1984. In this case, as popular history well and truly knows, a baby was placed in a bassinet inside a tent in a camping ground at Ayres Rock. A short time later, the The tent was found empty and the mother of the baby, Lindy Chamberlain, was heard to cry out, that dingo's got my baby. There were then small amounts of bloodstain found in the defendant's car and the mother was charged with the murder of the baby. Now, that whole case was circumstantial in the sense that nobody at any point in time could actually confirm that Azaria Chamberlain had been killed. Nobody could confirm how she'd been killed. Nobody could confirm what happened afterwards. Nobody saw anything. The whole thing had to be reconstructed from circumstances. Finally, the case of the Crown and Demeter. There was a young child, aged nine, who alleged to have been indecently assaulted by an adult male. during a slumber party, a children's slumber party. There were only two adult males present in the home at the time. The home was locked and sealed and one of the adult males was clearly not the male who conducted any criminal activity that night because the circumstances were such that it was not possible for him to have been the offender. By process of elimination, that suggests that the only possible offender was the other adult male who was in the house. So... you can see that again there's no direct evidence in none of these cases has there been any direct evidence of the criminal offence nobody saw hodge attack the lady and take her money nobody saw mr plomp drown his wife nobody saw what happened to azaria chamberlain nobody saw what happened to the child in the crown and demeter In each of those cases there were sufficient surrounding circumstances that the prosecution could ask the court to conclude that those circumstances pointed in the direction of the facts which are the elements of the crime being met. That's circumstantial evidence. Circumstantial evidence doesn't directly point you to the element of an offence but it makes it more likely that that element of the offence is actually met. Circumstantial evidence is the victim of a really common misunderstanding which is perpetrated in the popular media and through movies and TV and so on. And that's the idea that people have, that in criminal cases you can't be convicted on the basis of circumstantial evidence. It's rubbish, rubbish, rubbish, rubbish. It is completely common for circumstantial evidence to be introduced in criminal cases, and it's very common for circumstantial evidence to be compelling in criminal cases. And if you don't believe me, think about DNA. DNA evidence which is possibly the most powerful evidence that can be put before a court is all circumstantial because all it shows is that the DNA of a person was present at the location of a crime. DNA evidence is not the same as direct evidence, it's absolutely circumstantial but it's also very compelling a lot of the time in cases. A criminal case can be conducted completely on the basis of circumstantial evidence. It's just that the circumstantial evidence will have to be assessed according to relevant submissibility and weight to show whether or not the evidence is strong enough to make the inferences that are being asked for overwhelmingly likely. So how do we do that? How do we test circumstantial evidence to make sure that the inferences that are being asked to be drawn are sufficiently likely? We do that by applying what's called the Shepard test. We've already introduced you to the case Shepard and the Crown. That case gave rise to the test which has now become regarded as the fundamental test for assessing the strength of a circumstantial case. The way it works is that the jury must satisfy itself that there is no reasonable explanation of the facts consistent with the applicant's innocence. So if you can construct any reasonable narrative of those circumstantial facts that is consistent with the innocence of the accused, they are entitled to their acquittal. And that makes logical sense because if there is a reasonable narrative that is consistent with innocence, then there is reasonable doubt. And if there is reasonable doubt in a criminal case, then you must acquit the person. What do we mean by that? Well, let's go back to Hodges case that we discussed just a few minutes ago. in that when i was talking about that case i posited for you a reasonable alternative version of the facts that alternative of the facts would say hodge was just a thief not a murderer he came along after the murder had been committed and because he was not a very nice character instead of stro try stopping to try and help the victim he took her money ran away suddenly realized that if he was caught with the money he'd look like a murderer dug a big hole and stuck it in the hole There you can see a reasonable alternative version of the events that leads to his being innocent of what he was charged with. Now we need to be careful at this point. It's not necessary for the defendant to prove that the reasonable alternative narrative is true. As long as there is a reasonable alternative narrative. that's enough to get the acquittal so in that case in hodges case it would not have worked for the prosecution to turn around and say Well, prove to us that all you did was came along later and found the money and ran away. Doesn't work like that. It's the prosecution's job to prove that the accused person committed the crime. And if the accused person can say, well, here are the circumstantial facts that you've listed, but we can actually add them up in a way that leads to my innocence, not my guilt. That's enough to defeat their case. That's enough to say there is reasonable doubt. And as soon as there is reasonable doubt, a criminal defendant is entitled to their acquittal. How can we use circumstantial evidence? There's three ways. And they're described as links in a chain, strands in a rope, or the silver bullet. links in a chain occurs when circumstantial evidence is used to set up essentially a logical syllogism or a series of logical cause and effect to show that as you reason from one fact to the next fact you arrive in a place where the guilt of the accused person or where your cause of action is adequately demonstrated so if for instance A person was seen driving a stolen vehicle at high speed away from police. When you add all of those things together, you say, we know the vehicle is stolen. We now ask the logical question, how did it get from the place that it was stolen to where it is now? Well, it was probably driven. We have a person who's driving it. It's very likely that that person is the person who also stole the vehicle. So you can see there's... a chain of inferences that are being made from the facts that we have actually observed to the facts that we need to prove to the court. The second way is strands in a rope. Strands in a rope is different to links in a chain because we're not relying on one chain of logical progression from fact to inference. Strands in a rope, we're saying, here we have three or four different circumstantial aspects of the case, all of which point in the same direction, and while any one of them on its own is unlikely to be enough when you put them all together they're a pretty sure thing so for instance our case where the burglar is caught driving away from the scene the mere fact that he was driving away from the scene late at night isn't enough The fact that he's driving away from the scene at late of night at high speed is getting closer. There's another strand to the rope. We add a third strand to the rope by saying he's got house breaking tools in the back of the car. And let's say we added a fourth strand to the rope by saying he's got a bunch of DVDs in the car that match the descriptions of DVDs stolen from in the house. All of it's circumstantial evidence. But when you start to add all of those strands together, you get a pretty strong rope. They're not logically connected with one another, but they all pull in the same direction, and they make the inference that this is the person who committed the crime almost overwhelmingly likely. Finally, the silver bullet. The silver bullet is a case where you have one key fact that suddenly blows the other case out of the water. A good example here is a watertight alibi. A couple of weeks ago I asked you to watch an episode of Rumpole of the Bailey where a young man was accused of a robbery and he was accused on the basis of an alleged confession that had been made to another young man and in the end the confession or lack thereof had absolutely nothing to do with the reason for his acquittal. He was acquitted because his lawyer Rumpole was able to show that on the night that he had apparently been bashing the butcher, he had in fact been at a Rolling Stones concert because that was the night of the only concert within the time period. Now the existence of a Rolling Stones concert at the Hammersmith Odeon had absolutely nothing to do in a logical sense with a butcher getting bashed in East London. but it's a fact that is so inconsistent with the narrative that's being run by the prosecution that it was impossible for the prosecution to maintain its argument after that. So it was a silver bullet. It came out of nowhere and completely decimated the other side's case. Those are the three ways that circumstantial evidence is used. Now... Circumstantial evidence is so commonly used in criminal cases that it really makes no sense to start trying to run through a list of different occasions or different types. But one type of circumstantial evidence that we are going to look carefully at is circumstantial evidence that relates to the defendant. This is a special category of circumstantial evidence because it's not looking at facts surrounding the offence. it's looking at facts surrounding the person. And we're very careful about admitting facts about a person because one of the basic elements of our criminal system is that we want it to be rehabilitative. So the fact that somebody's committed offences in the past does not in the criminal law make it seem more likely that they will commit offences again in the future. In our system of law, every offence has to be separately proven. So the law is very careful about admitting evidence that a person is of bad character because it's not good enough to simply get a defendant up in front of the court and say this guy's a bad person and therefore he's likely to be the one who's committed this offence. So even though we don't have an awful lot of evidence about this particular offence let's just convict him anyway. It starts to, if we think back about week one, it starts to sound a little bit like she's a witch doesn't it? So, but on the other hand Sometimes the nature of a person is going to affect the likelihood that they committed a certain sort of a crime. So there's got to be some circumstances under which you can introduce that sort of evidence. And in fact there are, but the rules around them are very, very tight to make sure that this evidence is only ever used in a probative rather than a prejudicial sense. There are three types. First is similar facts in the defendant's previous offending. Second, evidence that an offender has a propensity to offend. And third, evidence of an offender's character generally. Let's look at them separately. We'll start with similar fact evidence. Similar fact evidence is evidence in relation to previous offending where the previous offences are so similar that the inference is open that the offences must have been committed by the same person. The case that's given there is the Crown and Straffon, which is a tragic, tragic case from the 1950s. In this case, Straffon strangled two young girls and was put into a psychiatric institution because he was found not to be mentally competent to stand trial for a criminal offence. Sometime after he was placed in a psychiatric institution, he escaped that institution for a period of four hours. In that period of just four hours, another young girl was strangled in a place nearby the mental institution. all of the girls were of a similar age all of them died in the same way none of them were sexually interfered with all of them were disposed of in a way that was very open for them to be seen even when there were plenty of options available for a more discreet disposal of their body the facts in each of the offending were so similar that it was almost inevitable that straffen would be seen as the person who had committed these offences The window of time was too small. When you look at all of those circumstances, it does seem almost irresistibly likely that the same person committed all three offences. Another one that I've indicated there relates to the Bali bombings in 2002 and the Jakarta Embassy bombing in 2004. Australian Federal Police who were investigating those crimes noticed when they reconstructed the bombs from pieces that were obtained by forensics in the site of those attacks, they noticed that the bombs were made in an unusually neat way compared to the work that was done by most terrorists. They noticed that these were both the circuitry and so on involved in these bombs was set out in a very precise, very professional manner and that it was done in a way that bore the stamp, bore the characteristics of the same bomb maker being involved in the making of both bombs. And that allowed them to conclude that the bomb maker Azahari was likely to have been responsible for the manufacture of both bombs. Now Azahari was eventually killed in a shootout with police and was therefore never brought to justice. But had Azahari been brought to justice before an Australian court, it is very likely that the police would have brought similar fact evidence in relation to the manufacture of those bombs. So what you can see is if you've got several offences and the facts are so similar, so similar, then it's possible to introduce similar fact evidence to show that the same person had to have committed both of the offences. How similar? In a case called Markby and the Queen, the High Court said it may not be going too far to say that similar fact evidence will be admissible only if it is so very relevant and that to exclude it would be an affront to common sense. An affront to common sense. So it has to be so relevant that it would just be ridiculous if we did not include it. There's another type of similar fact offence. sorry similar fact evidence and that occurs when a number of people making similar complaints come forward at the same time so there's no track record of offending the person might be being charged for the first time but it might be that three different people have been in contact with that offender have reported very similar circumstances such that the police say well we think we're defending we're looking at one offender here rather than three This is what happened in the case Hock and the Queen in 1988. Hock was on the staff at an institution for boys here in Brisbane and in a short period of time three young men came forward and made accusations of sexual offences committed upon them by Hock. Initially the prosecution brought the matters forward as similar fact evidence and Hock appealed on that basis. When it got to the High Court, the high court said that the evidence was inadmissible because similar fact evidence in this situation should not be admitted if there was a reasonable suspicion of collusion So if there was any reasonable likelihood that the complainants had been able to put their heads together and come up with a consistent complaint, the evidence should not be admitted. And the reason for that was that that collusion gave another rational view of the evidence. So if you look at the Shepard test again, and you apply the Shepard test here, the Shepard test says, is there another reasonable explanation of these facts that leads to innocence? In the Hock case, there certainly was another explanation, and that was that these three young men didn't like Hock in the first place and he was an authority figure over them, and that they'd put their heads together and colluded in order to mount the case against him. Now, that's what the High Court said in 1988. The Queensland Parliament was quite unhappy with the outcome in Hock, and so now the Evidence Act in Queensland has been changed. So it now says that in a criminal proceeding similar fact evidence must not be ruled inadmissible on the grounds that it might be the result of collusion or suggestion and the weight of that evidence is a question for the jury. So, in Queensland, when you get several complainants and there is the possibility of collusion, what has to happen is all of the evidence is admissible and it's placed before the jury and the jury has to work out whether they think there's been collusion or not. Next I want to turn to propensity evidence. Propensity evidence is a little bit less precise than similar fact evidence. propensity evidence is introduced to show that an accused person has a propensity for behaving in a manner that is consistent with whatever behavior has been observed as part of the offense so we can compare similar fact and propensity evidence to show that they're a little bit different similar fact evidence says offenses A and B are so alike that they simply must have been performed by the same person Propensity evidence says, well we don't really have a similar crime that we can look at, but we do have evidence that the defendant has a penchant for the type of actions that are relevant to this offence. So we can infer that the defendant has committed this offence. The example that makes this seem clear is another tragic case. This case is the Crown and Fenwick. What happened here was that in january of nineteen eighty nine a young boy in adelaide went missing from a riverside park and he was never seen again he either drowned or was abducted and there was no evidence that he drowned it was concluded by the police that he had been abducted and probably raped and murdered Fenwick was seen in the vicinity of the victim on that occasion and by Fenwick's own evidence he came into contact with the victim and had a chat to him and had some sort of engagement with him within a very short period of time before the time that the victim was last seen alive. He was interviewed as a suspect in relation to that offence but he wasn't charged at that time because there was insufficient evidence to To charge him. In December of 1989, so less than a year later, Fennig abducted and raped a 13-year-old boy about 30 kilometres away from the first offence. He then confessed and pleaded guilty to the rape of that 13-year-old boy and the circumstances indicated that he may well have intended to murder the 13-year-old but the 13-year-old was able to escape during the commission of the crime. Now, other than the ages and the genders of the two victims, there were a few similar facts between the two. There's really nothing upon which to ground an argument for similar fact evidence. But once you put the two together, the judge looked at the evidence relating to the second offence and then looked at the first offence in the light of that evidence. And the judge said, for somebody else to have committed the first offence, we would have to believe that there were two people in the first victim's vicinity at about the same time in the afternoon, each of which had the propensity to kidnap and sexually assault young boys, and each of which had the physical means that afternoon of doing so. and neither of which came into contact with each other but both of which came into contact with the victim the judge said it is such an affront to common sense to believe that this could have happened that it becomes overwhelmingly likely that in fact what happened was that Fenwick was responsible for committing both crimes. The second offence showed that Fenwick had a propensity for abducting and raping young boys and when you apply that propensity to the evidence in the first offence, it became clear that Fenwick was the person that they were looking for. And that gave rise to what we call the Fennig test. The Fennig test is that propensity evidence is not admissible if it just shows that the person had a propensity to commit the sort of crime that they've been charged for. In order to be admissible, the probative force must clearly transcend the prejudicial effect of mere criminality. so it must the probative effect this constant balance between probative effect and prejudicial effect that we've been talking about all semester the balance must be so clearly in favor of probative rather than prejudicial that it's that it would almost be an affront to common sense in shepherd terms not to admit the evidence so that's the fennig test Incidentally, as recently as the last 12 months, so as recently as 2011 to 2012, I understand that police in South Australia were digging up the yard in Fenwick's former residence because they believed that there may actually be remains there in connection to another victim. But the outcome of that investigation is not yet clear. A tragic case. Now at this point some of you are probably thinking right so for propensity evidence we've got to apply Sheppard and we've got to apply Hock and we've got to apply Fennec and this is getting darn messy. If that's what you're thinking you're right. In Queensland thank heavens the Queensland courts have laid down a new test that replaces all of those. It's called the O'Keeffe test. It asks two questions. first is the propensity evidence of such caliber that there is no reasonable view of it other than supporting an inference of guilt so that's your Shepherd test as laid down in O'Keefe is the evidence of such caliber that there's no alternative reasonable view second If the propensity evidence is admitted, is the evidence as a whole, so not just the propensity evidence but the whole evidence in the case, reasonably capable of excluding all innocent hypotheses? And then the court says that this exercise must be undertaken with special care because of the danger of the misuse of such evidence by a jury. So in other words before the court admits propensity evidence it must exercise the utmost care to ensure that by using propensity evidence it is not inadvertently perpetrating an injustice. So in Queensland and in answer to things like exam questions I would certainly like you to know that the Shepherd test, the Hock test and the Fennec test exist. But in terms of application the best test to use is O'Keefe. Next I want to talk for a moment about relationship evidence. Sometimes it's necessary. to lead evidence about the relationship of two people, particularly where one of those is accused of offences against another. This is particularly the case where you're talking about either sexual offences within a family environment or domestic violence offences. Now, ordinarily we would say that that sort of evidence shouldn't be admitted because evidence of past conduct is just propensity evidence and unless it meets the O'Keefe test, then we shouldn't be using it. But in fact, what the courts have said, quite rightly, is that if the evidence is led to contextualise the relationship, not to infer that the defendant committed the acts alleged, then it's not strictly propensity evidence. And if it's not strictly propensity evidence, then there's no need for the propensity test to apply. Let me give you an example. The example I'd like to give is Gipp and the Queen, which is a 1998 case. In this case, Gipp was charged with several counts of sexual offences against his stepdaughter, who was in her mid-teenage years at the time of the charge. In relation to the acts for which he was charged, there was evidence that the victim had not reacted in a traumatic way at all. That after he had committed offences upon her, she had laid next to him in the bed, had a chat for a while and then got up to get a drink. now ordinarily ordinarily one would think that that is not the behavior that we would anticipate from somebody who has just had a serious sexual offense committed upon them and so ordinarily the evidence of her behavior in that situation might tend to suggest that perhaps the offense hadn't occurred quite as her evidence was suggesting in this case they led evidence to show that in fact these charges were representative charges and that the offending had gone on against her from about the time she was aged six so in fact the relationship was characterized by systematic and continuous sexual abuse over the period of a decade in which case The sexual abuse on the occasions that were charged were not traumatic for her because they had become situation normal. She had become so sexually abused for such a long period of time that it was not to be expected that she would react with massive trauma on each occasion. Now you can see that her evidence of her reactions after the offending. is inexplicable until you get the relationship evidence that allows you to put it into context. And you can see that that relationship evidence is not introduced in order to try and assert that the defendant should be criminally liable for all of the offences committed over all of those 10 years. It's actually just admitted in order to allow the court to understand the relationship context in which the alleged offences were conducted. So relationship evidence is a little bit different. It's evidence that relates to the defendant. but it's not the same as propensity evidence because it's not inviting the court to make the same sorts of inferences. It's just providing background. Finally, I want to turn to character evidence. And looking at the slide there, you don't get much more of a criminal character than Chopper Reid. Character evidence is adduced in order to demonstrate what type of person the defendant is. The potential for character evidence to be prejudicial is really, really clear. The idea that we say, this person is a grub, they're a criminal, therefore they're likely to have committed that criminal offence, that's really dangerous. We wouldn't want anyone to be convicted of a criminal offence merely on the basis that they had been convicted of criminal offences in the past. They've actually got some very good rules about how character evidence works. Here's how it works. Prosecution can't lead character evidence. They just can't do it. However, if the defense gets up and leads character evidence about what a wonderful christian soul the defendant is if the defense gets up and leads evidence that the character that the defendant has a good and wonderful and proper character then the door is open for the prosecution to lead evidence in rebuttal of that fact. So once the defence has put character on the table as something to argue about, then the prosecution can go for their life. But if the defence knows that the character of the defendant is a bit dodgy, all they need to do is refrain from introducing character evidence and the prosecution can't introduce any at all. So that's fair. It means that the defence is on notice that if they want to... raise character as a factor within the trial, then they have to be prepared for evidence going in the other direction to be introduced against them. I kind of like that. Queensland statutory provisions essentially write into statute those common law provisions. However, there are some additional circumstances in which bad character can be led in Queensland. First, is sometimes the character of the person is going to be relevant to actually proving an element of the offence, particularly where things like state of mind are required. Second, if evidence is being led by a co-accused in order to exonerate co-accused. So let's say you've got somebody who says, I'm not guilty of this offence because I was coerced into conducting this offence by this person in the dock next to me who's actually the real baddie. In order for them to make that defence out, they have to be able to say things about the character of the other defendant. So if you've got co-accused in a case, they can go to town on each other as far as character evidence goes. But yet again, That's not the prosecution introducing that evidence. That's defence introducing that evidence. It's just that they're introducing it against other defendants. Third, if the defendant has tried to demonstrate their good character which we've just spoken about, and finally we can use character evidence if the evidence is led by a co-excused against whom the defendant has given evidence so that situation we spoke about a moment ago defendant number one has said the only reason I did it was because defendant number two forced me to do it well defendant number two is then entitled to lead character evidence about defendant number one that says no actually it's the other way around you forced me Okay, so basically the way it works is that nobody can have character evidence asserted against them unless they pretty much put it on the table first, unless you've got co-accused who are tearing strips off each other in court, in which case the prosecution are going to be perfectly happy to sit back and let them do it. So that's character evidence. I want to turn now briefly to the Uniform Evidence Act. In the Uniform Evidence Act... The rules are more or less the same, in fact the rules are virtually the same, with a couple of minor changes of description. So in the Uniform Evidence Act, similar fact evidence has been renamed coincidence evidence and coincidence evidence can only be used if it has significant probative value, which sounds to me awfully like the O'Keefe Test. Propensity evidence in the Uniform Evidence Act is referred to as tendency evidence. And tendency evidence can also only be used if it has significant probity value. Character evidence, thank heavens, remains character evidence and the rules are virtually unchanged from the common law. So if you're dealing with a Uniform Evidence Act jurisdiction and you see coincidence evidence think similar fact and if you see tendency evidence think propensity evidence. So that covers the material for circumstantial and character evidence. What we've looked at is the fact that circumstantial evidence is not direct. It invites the court to draw inferences as to the facts in issue. Circumstantial evidence most definitely can be used to secure a criminal conviction. And the way that it works under the Shepherd test is that it must be clear that there is no rational explanation that is consistent with the innocence of the accused. As soon as there is a reasonable explanation consistent with the innocence of the accused, they're entitled to an acquittal. Similar fact circumstantial evidence can be led to show that two offences are so similar that they must have been the product of the same offender. Propensity evidence can be used in accordance with the Fennec test if you can show that the propensity of the person to commit certain crimes makes it so likely that they committed the crime in question that there is no reasonable alternative explanation. And finally character evidence can be introduced but generally speaking the defence has to put it on the table before the prosecution can lead character evidence. This week I'm going to suggest that you have a look at two movies. One of them is an absolute classic and the other one perhaps not quite so. The first one that I'd like you to look at is a scene from the movie Legally Blonde. Probably not the highest point of courtroom drama, but a good fun movie and worth a look. In the climactic scene of that movie, the... The eponymous legally blonde lawyer leads a bunch of circumstantial evidence that ends up showing that the crime of which the accused person was committed simply couldn't have been conducted in the way that the witness was saying. It's a great little piece of courtroom movie and I hope you enjoy that. And then we go... to the absolute alternative in the movie kramer and kramer which is an older movie now but has absolutely beautiful performances from meryl streep and dustin hoffman and the scene that you're going to look at is probably one of the most emotionally heart-wrenching scenes in that movie where the character of the witness is just absolutely decimated by the lawyers in a public forum. And it's probably an example of why we don't use character evidence in this way because it's excruciating to watch and it would be even more excruciating to participate in in an actual courtroom. I hope that those two clips from the movie bring this week's discussion to life for you. And I look forward to next week when we have the last substantive week of lectures and next week I promise we really will be looking at opinion evidence.