I just finished reading through R v Sadler [2008] VSCA 198.

It’s an interesting case from the Court of Appeal on two main issues.

The first issue was about the permissible extent of cross-examination going to credit under s 37 of the Evidence Act 1958. (The equivalent in the new Evidence Act 2008 is found in ss 103 and 104.)

The second issue was about the use of uncharged acts. Sandler was accused of raping his defacto, who was previously a prostitute and heroin addict. The defendant (through his counsel) applied to cross-examine the complainant and accuse her of still using heroin when she complained she was raped.

The Court of Appeal considered the questions could be relevant not only to her credit, as permitted under s 37, but also about her capacity to observe or recollect the incident. (But just how much heroin does the Court of Appeal thinks a woman need consume before she is no longer capable of observing a penis in her vagina when she doesn’t want it there?) For those reasons, the Court considered the trial judge made a mistake by not letting the defendant ask those questions in cross-examination.

The discussion is interesting. It deals with the extent of cross-examination, and just how much latitude should be given the cross-examiner (harking back to Wakeley v The Queen (1990) 93 ALR 79, without citing it). It also covers the corresponding obligations on the cross-examiner under Browne v Dunn. And it covers just how much the cross-examiner is obliged to disclose instructions or the basis for cross-examination.

On uncharged acts, the Court reviewed Pfennig, and s 398A of the Crimes Act, and a later High Court case: R v HML (2008) 245 ALR 204; [2008] HCA 16.

I haven’t read HML — but I’m putting it on my increasingly lengthening list of to-read cases. As for Sadler, I need to re-read it again. But I reckon there’s a little bit of judicial tension evident. The Court of Appeal is careful to say “High Court, we acknowledge you are right. But…we don’t think HML applies in Victoria.”

The upshot of that discussion is our Court of Appeal thinks relationship evidence comprising uncharged acts is admissible to provide ‘context’ to charges before a court, whereas the High Court doesn’t like that idea! I must admit, propensity arguments do not feature in the vast bulk of cases I see at my office.

Is that your experience? Have you tried using propensity evidence in a case, or tried to prevent it being admitted?