Tendency and coincidence

Question 1

97 What is tendency evidence?

Answer 1

Tendency evidence is:

1. evidence of character, reputation, conduct or a tendency that a person has or had;
2. adduced to prove that a person has a tendency to behave in a particular way, or to have a particular state of mind;
3. from which the jury infers a fact in issue.

Hence, tendency is a form of circumstantial evidence. The definition is purposive. (Quach)

Question 2

97 When is tendency evidence admissible?

Answer 2

Tendency evidence is admissible if:

1. a tendency notice is filed and served (ss 97(1)(a) and 99); AND
2. the evidence has significant probative value (s 97(1)(b)); AND
3. if the prosecution adduces the evidence in a CRIMINAL proceeding, its probative value SUBSTANTIALLY outweighs its prejudicial effect (s 101(2)).

How is ‘significant PV’ of tendency evidence determined? → Hughes two step test:

1. the extent to which the evidence proves the tendency;
2. the extent to which the evidence makes the facts in issue more likely.

Question 3

How is ‘significant PV’ of tendency evidence determined?

Answer 3

Hughes – ‘two step test’:

1. the extent to which the evidence proves the tendency;
2. the extent to which the evidence makes the facts in issue more likely.

Question 4

101 Crim: Further restrictions on tendency and coincidence evidence adduced by Prosecution

Answer 4

If the Crown adduces tendency or coincidence evidence, its PROBATIVE VALUE must SUBSTANTIALLY OUTWEIGH its PREJUDICIAL EFFECT (s 101(2)).

Prejudicial effect – ‘undue impact on jury, adverse to the A, over and above PV’

NB: rule requires a value judgment – balancing PV against PE - not a discretionary exercise.

Question 5

Assessing probative value of tendency evidence

Answer 5

Relevant factors (Hughes):

• the issue to which the evidence is relevant
• the amount of misconduct
• the time-gap between the misconduct and the facts in issue
• any geographic connection between the misconduct
• the specificity of the tendency (Hughes)

Note: ‘similarity’ between tendency evidence and FII not required.

HOWEVER:

• similarities and differences are relevant if they bear upon the tendency (Hughes); and
• If ID is in issue, probative value will “almost certainly depend upon close similarity”.

Question 6

98 - What is coincidence evidence?

Answer 6

Coincidence evidence is:

1. evidence of two or more similar events;
2. adduced to prove that, because the events are SO SIMILAR, it is IMPROBABLE they occurred coincidentally;
3. from which the jury infers a fact in issue, including:

• whether the alleged offence was committed;
• the identity of the offender;
• the mens rea; or
• whether multiple complainants are telling the truth.

Coincidence evidence commonly consists of multiple charges or prior convictions (Dupas) but may apply in civil as well as criminal proceedings.

Question 7

When is coincidence evidence admissible?

Answer 7

1. a coincidence notice is filed and served (ss 98(1)(a) and 99); AND
2. The evidence has significant probative value (s 98(1)(b)); AND
3. if the prosecution adduces the evidence: that PV substantially outweighs its prejudicial effect (s 101(2)).

Question 8

Assessing probative value of coincidence evidence

Answer 8

Hughes two step test does NOT apply

The ‘touchstone of admissibility of coincidence evidence… is SIMILARITY’ between the evidence and the FII (PNJ)