Tendency and coincidence Flashcards
What is the tendency rule?
Tendency evidence is evidence that is used to prove that a person has or had a tendency, to act in a particular way, or have a particular state of mind.
(s97): Tendency evidence is not admissible unless –
a) Party gives reasonable notice;
b) The court has significant probative value;
c) And, in criminal proceedings, per s101, the probative value substantially outweighs any prejudicial effect.
What is the test for tendency evidence?
Two stage test:
o Is the evidence relevant to prove a relevant tendency and proved for that purpose, and if so,
o Must be satisfied the evidence, by itself or combined with other evidence adduced or to be adduced by the tenderer, has ‘significant’ probative value.
How can a party rely on tendency evidence?
Step 1 – Notice
Notice requirements can be dispensed with under s100
Step 2 – relevant for a tendency purpose?
Is the evidence relevant to prove a relevant tendency and proved for that purpose?
Step 3 – does the evidence have significant probative value?
Must be satisfied the evidence, by itself or combined with other evidence adduced or to be adduced by the tenderer, has ‘significant’ probative value.
Evidence only needs to be relevant to a fact in issue, not all facts in issue.
Step 4 – if significant probative value, pros must satisfy that significant PV substantially outweighs the unfair prejudice to A
Can it be excluded under s101 – evidence of tendency cannot be admitted unless the probative value significantly outweighs the prejudicial effect to the accused (if tendency evidence used by pros against the accused)
- The onus is on the prosecution to satisfy the court that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Step 5 – need for Jury directions
a) Where admissible
- Per s27, where tendency evidence is adduced and a direction is necessary must:
o Identify how the evidence is relevant to the existence of a fact in issue; and
o Direct the jury not to use the evidence for any other purpose; and
o Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
o If the evidence only forms part of the case against the accused, inform the jury of that fact.
b) Where inadmissible - Defence may ask the judge to warn the jury to not use other ‘misconduct evidence’ (coincidence/tendency/discredible acts etc) which is not tendency evidence as tendency evidence (s29)
- A warning against using evidence as tendency evidence warns the jury not to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, and to use that conclusion as evidence of guilt.
What is probative value?
‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’
How does the court determine whether the tendency evidence has SPV?
- In Hughes, the majority judges explained that determining whether evidence has significant probative value involves two separate but related matters:
o The extent to which the evidence proves the alleged tendency;
o The extent to which the alleged tendency makes the facts in issue more likely.
What factors are considered in the assessment of probative value?
- The issue to which the evidence is relevant (Hughes)
- The time lapse between them (Velkoski) – was there limited time for the tendency to manifest or was there a broader timeframe and there was no evidence that the alleged tendency was manifested on those occasions.
- The geographic connection between the alleged conduct (Semaan)
- The degree of specificity of the conduct or alleged tendency or coincidence (Hughes)
- The degree of similarity (not determinative but should be seen in conjunction with other features)
- The extent to which the circumstances in which the conduct occurred are similar (Velkoski)
- Whether the evidence is adduced to explain or contradict tendency or coincidence evidence adduced by another party.
- The court must assess the probative value of the evidence on the assumption that the jury will accept the evidence and that, therefore, questions as to the ‘credibility’ and ‘reliability’ of the evidence and the witness do not arise (IMM)
Who bears the onus to establish SPV?
- The onus is on the prosecution to satisfy the court that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
What s101 exclusion?
Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Can evidence adduced for another purpose be used for tendency / coincidence purpose?
No
Evidence admitted for another purpose cannot be used for tendency or coincidence purpose. UNLESS it has satisfied the requirements of tendency and coincidence . (unlike hearsay/ opinion where evidence used for another purpose, can be used for hearsay/ opinion purposes)
What type of directions should be given if an evidence is being used for a tendency purpose?
Where adduced by the prosecution and direction necessary, TJ must (s27):
* Identify how the evidence is relevant to the existence of a fact in issue;
* Direct the jury not to use the evidence for any other purpose; and
* Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused;
* If the evidence only forms part of the case against the accused, inform the jury of this fact.
What type of directions should be given if an evidence is being used for a non - tendency purpose?
Example: other misconduct evidence - s26
Defence may request for the TJ
- Such a warning warns the jury not to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, and to use that conclusion as evidence of guilt.
What is the coincidence rule?
‘Coincidence evidence’ is evidence which uses the improbability of two or more events occurring coincidentally to prove that:
* A person performed a particular act; or
* A person had a particular state of mind.
(s98): coincidence evidence is not admissible unless -
a) Party gives reasonable notice;
b) The court has significant probative value;
c) And, in criminal proceedings, per s101, the probative value substantially outweighs any prejudicial effect.
What is inferential reasoning in coincidence evidence?
- The use of ‘coincidence evidence’ relies on a process of inferential reasoning, in which the jury:
o Infers from evidence of similarities between two or more events, and/or the circumstances in the which the events occurred, that it is improbable that the events occurred coincidentally; and
o Infers from the improbability of such a coincidence the existence of a relevant fact in issue.
How can a party rely on coincidence evidence?
Step 1 – Notice
Notice requirements can be dispensed with under s100
Step 2 – relevant for a coincidence purpose?
Is the evidence relevant to prove a relevant coincidence and proved for that purpose?
Step 3 – does the evidence have significant probative value?
Must be satisfied the evidence, by itself or combined with other evidence adduced or to be adduced by the tenderer, has ‘significant’ probative value.
Evidence only needs to be relevant to a fact in issue, not all facts in issue.
Step 4 – if significant probative value, pros must satisfy that significant PV substantially outweighs the unfair prejudice to A
Can it be excluded under s101 – evidence of tendency cannot be admitted unless the probative value significantly outweighs the prejudicial effect to the accused (if tendency evidence used by pros against the accused)
- The onus is on the prosecution to satisfy the court that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Step 5 – need for Jury directions
a) Where admissible
- Per s27, where tendency evidence is adduced and a direction is necessary must:
o Identify how the evidence is relevant to the existence of a fact in issue; and
o Direct the jury not to use the evidence for any other purpose; and
o Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
o If the evidence only forms part of the case against the accused, inform the jury of that fact.
b) Where inadmissible - Defence may ask the judge to warn the jury to not use other ‘misconduct evidence’ (coincidence/tendency/discredible acts etc) which is not tendency evidence as tendency evidence (s29)
- A warning against using evidence as tendency evidence warns the jury not to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, and to use that conclusion as evidence of
In coincidence evidence, we look for ..
Similarity
