Director of Public Prosecutions v Kilbourne [1973] AC 729, 756
Citation:Director of Public Prosecutions v Kilbourne [1973] AC 729, 756
Rule of thumb:What is the test of whether character evidence about a person is relevant evidence in Court or not? The test of whether evidence is relevant or not is whether it makes liability more or less likely, with the exact wording being probative or disprobative, and this test applies to all types of evidence generally. The Court also held that for character evidence in the criminal Court procedure it does not just have to show the type of character, but the exact same type of incident having happened before.
Background facts:
The facts of the case were that the accused was a child molester and a body of evidence was being built against the accused to put before the jury. Character evidence was being sought.
Judgment:
The Court held that evidence of the accused being a homosexual was not relevant, but evidence from other boys who had been through similar experiences with the accused as the complainant was relevant and also admissible as character evidence. The Court affirmed that in order for character evidence to be relevant it has to be of a similar nature to what is being accused.
Ratio-decidendi:
"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ….. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable … Circumstantial evidence . . works by cumulatively, in geometrical progression, eliminating other possibilities… In order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation’, Lord Simon, ‘A considerable part of the time taken up in argument was devoted to a consideration whether such evidence of similar incidents could be used against the accused to establish his guilt at all, and we examined the authorities in some depth from Makin v Attorney General for New South Wales [1894] AC 57, through Lord Sumner’s observations in Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694. I do not myself feel that the point really arises in the present case. Counsel for the respondent was in the end constrained to agree that all the evidence in this case was both admissible and relevant, and that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the ‘striking features of the resemblance’ between the acts alleged to have been committed in one count and those alleged to have been committed in the others and to say that this made it ‘more likely that John was telling the truth when he said that the appellant had behaved in the same way to him.’ In my view this was wholly correct. With the exception of one incident. ‘each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form’ [1972] 1 WLR 1365, 1369. I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question. The word ‘corroboration’ by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.’ Lord Hailsham
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.