Part 3.6 - Tendency and Coincidence Evidence

Question 1

Summary

Answer 1

1. Is it Tendency or Coincidence evidence or both?
2. Then apply relevant test
   a. What’s the probative value?
   b. Identify prejudicial effect
   c. Weigh them up

Question 2

94 Application - this part does not apply to:

Answer 2

(1) Evidence that relates only to the credibility of a Witness
(2) Bail and sentencing proceedings
(3)(a) Character reputation or conduct of a person (b) tendency that person has/had
if that character, reputation or tendency is in issue (e.g. defamation)

Question 3

95 Use of evidence for other purposes

Answer 3

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

In other words, unlike hearsay, if it’s relevant and admissible for a non-tendency or coincidence purpose, that doesn’t mean it is also admissible for the tendency and coincidence purpose.

Question 4

96 Failure to act

Answer 4

A reference in this Part to doing an act includes a reference to failing to do that act.

Question 5

97 the tendency rule (accused state of mind / pattern of behaviour)

Answer 5

Is it tendency evidence?
(1) Evidence of the character, reputation or conduct of a person or a tendency that the person has or had …. When used to prove that a person has or had a tendency (whether bc of character or otherwise) to act in a particular way, or to have a particular state of mind.

[They did it before, so It’s more likely they did it again]

Test + notice (needs to have significant PV)
If so, can’t be admitted unless (1)(a) the person seeking to adduce it gives reasonable notice in writing of person’s intention to adduce it and (b) the court thinks that the evidence will, either by itself or having regard to other evidence, have significant PV.

● Per Hughes →
○ (1) How strongly does the evidence establish the relevant tendency?
○ (2) How strongly does the tendency support proof of a fact in issue?
○ No need for striking similarity!!
○ Look at unity in the behaviour (café attendance)

(Bower v Queen) – could be evidence of uncharged acts – could they fall within general tendency? – HC held uncharged act as valid as charged act for inferring tendency

(2)(1)(a) Does not apply if (a) adduced in accordance with directions made by Court under s 100, OR (b) evidence being used to explain or contradict tendency evidence given by another party.

Question 6

98 The coincidence rule (focus is on the scenes and particulars – the events)

Answer 6

Is it coincidence evidence?
(1) Evidence that 2 or more events occurred … to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events/circumstances in which they occurred, or similarities in both the events and the circumstances in which they occurred, it’s improbable that events occurred coincidentally.

Test + notice (needs to have significant PV)
If so, can’t be admitted unless the person seeking to adduce it gives (a) reasonable notice in writing and (b) the court thinks that the evidence will, either by itself or having regard to other evidence, have significant PV.

● Degree of similarity (Is any similarity just ‘stock-in-trade’)
● Assess degree of dissimilarity
● Proximity in time
● Number of occurrences
● Distinctive features unifying the events

(2)(1)(a) Does not apply if (a) adduced in accordance with directions under s 100, (b) evidence being used to explain or contradict coincidence evidence given by another party.

Question 7

Section 100 - Court may dispense with notice requirements

Answer 7

(1) Court may direct that TR not to apply to particular TE despite non-notice under s 97
(2) Court may direct that CR not to apply to particular CE despite non-notice under s 98
(3) Can be given before/after notice would have been required
(4) In civil proceeding, application may be made without notice
(5) direction (a) subject to such conditions (if any) as the court thinks fit; and (b) may be given either at or before the hearing.
(6) without limiting, condition may include (a)-(c) conditions to give notice of intention to adduce the evidence to specified party, specified TE, or specified CE.

Question 8

Section 101 - Restrictions on tendency and coincidence evidence adduced by the prosecution

Answer 8

(1) Section only applies in a criminal proceeding and so applies in addition to ss 97 and 98.
(2) T/C evidence about an accused cannot be used against the accused unless the PV of the evidence substantially outweighs any prejudicial effect it may have on the accused.
(3) (4) This section does not apply to tendency/coincidence evidence that the prosecution adduces to explain or contradict tendency/coincidence evidence adduced by the accused.

S101 – doesn’t apply to evidence adduced by A – eg, complainant has tendency to be liar; deceased in murder trial where self defence alleged – tendency to be violent.

PV – force and assistance evidence provides
Prejudice – risk the jury might be misled in its reasoning process.

NB: Clock watch so you leave time for this
No weighing in on credibility/reliability – for jury’s consideration. (IMM v The Queen)

Always note: could endeavour to moderate prejudice through relevant jury directions