When you look at the overruling that it Court’s approach in R v O’Keefe its Honours adverted into following passageway for the Pfennig :

But it does require the legal so you can prohibit evidence when the, seen regarding framework and method only described, there was european web chat a reasonable look at the same facts evidence and this was in keeping with innocence

1. McMurdo P (which have who We consented) emphasised “the fresh outstanding entryway of equivalent fact research.” For the finishing that there were “significant parallels” between the conduct alleged by the one another complainants, it had been kept one “if A’s evidence of new percentage from counts step 3 and you may 4 was recognized, after that there clearly was no reasonable view of you to definitely evidence consistent with the fresh appellant’s innocence into matter 2 connected with J.” Following Pfennig test, almost all reasoned you to “the many parallels involving the accounts out-of J and you may A were sufficiently striking to help you constitute proof a common modus operandi.” Accordingly, it had been held the matters was basically appropriately joined “while they was on the exceptional group of comparable reputation.”

But it does need the judge in order to ban evidence in the event that, seen throughout the framework and you can method just discussed, you will find a reasonable view of the same fact facts which are consistent with purity

1. The exam become used is actually establish the following:

“The challenge of joinder off fees for their equivalent profile have lately been experienced from the High Judge for the Phillips v The Queen . In the a joint wisdom the new courtroom (constituted of the Gleeson CJ, Gummow, Kirby, Hayne and you will Heydon JJ) noted the shot toward admissibility out-of equivalent facts proof has long been you to definitely produced in Pfennig v The latest Queen : comparable facts facts are inadmissible except if, seen in the context of the fresh new prosecution circumstances, there is absolutely no reasonable view of they consistent with the purity of your implicated.

‘[S]triking resemblance, underlying unity and other such meanings away from comparable truth is perhaps not important to the brand new admission of such research, regardless if usually the facts often lack the necessary probative force when the evidence doesn’t has such as attributes.’

‘… [A] basic aspect of the criteria to own admissibility: [is] the need for comparable fact research to have some type of probative high quality. The fresh new ‘admission away from similar truth evidence … is actually exceptional and requires an effective level of probative push.’ It will has a ‘really question bearing to the situations as decided’. It is just admissible where their probative force ‘clearly transcends the merely prejudicial effect’. ‘[I]ts probative value should be good enough highest; this is not enough that the facts simply has many probative value of the fresh new needed kind’. The newest criterion away from admissibility for similar facts research are ‘the stamina of their probative force’. It’s important locate a ‘sufficient nexus’ amongst the number 1 facts on a particular charge plus the equivalent reality research. The fresh probative force have to be ‘sufficiently great to really make it merely in order to recognize the data, despite that it is prejudicial toward implicated.’ Admissible equivalent facts research must have ‘some specific exposure to otherwise regards to the difficulties having decision in the subject case’. Since the informed me inside the Pfennig v The King : ‘the evidence of inclination needs a specific contact with the fee of your offence charged, a connection which could happen in the research offering extreme cogency to the prosecution situation or certain aspect or areas of they.’ (footnotes omitted)

‘What is told you when you look at the Pfennig v The brand new King concerning the task of a legal deciding the brand new admissibility out-of similar facts proof, and also for one objective contrasting new probative effect of the evidence using its prejudicial perception, must be understood on light off a couple of then considerations. Very first, due weight should be provided to the need to view the equivalent fact research in the context of new prosecution circumstances. Furthermore, it ought to be accepted that, while the a test off admissibility from research, the test is to be applied by the judge for the particular assumptions. Ergo it ought to be believed your similar truth proof manage feel approved while the correct and this the fresh prosecution situation (since shown in proof already offered from the demo or even in the brand new depositions off witnesses later on become entitled) can be recognized by the jury. Pfennig v The fresh King does not require the brand new legal to conclude that the similar fact evidence, condition by yourself, create show the fresh shame of the implicated of offence otherwise offences that he or she is recharged. ‘ (footnotes excluded)”