Probative value and admissibility in the criminal trial - Focus and holism

Overview

What you will study

In determining whether challenged evidence is admissible, the trial judge is often required to assess its probative value. The orthodox view is that this assessment focuses on the strength of connection between the challenged evidence and the fact in issue. However, a distinct strand of High Court jurisprudence, running through the common law and the uniform evidence legislation – from Pfennig v The Queen (1995) 182 CLR 461 through Phillips v The Queen (2006) 225 CLR 303 to TL v The King (2022) 96 ALJR 1072 – requires a holistic approach to probative value. That is, the trial judge should assess the contribution of the challenged evidence together with other evidence. The High Court’s occasional holism introduces incoherence and uncertainty into the law. The interventionism of this approach may be prompted by concern over the prejudicial risks of propensity evidence; however, holism does not necessarily provide added protection. The High Court’s holism appears to be more the product of fallacious reasoning and inattention to the logic of proof. This Probative value and admissibility in the criminal trial - Focus and holism course offered by University of Sydney will discuss these topics.