Tendency and coincidence Flashcards
What can disclosure of prior conduct lead to?
It has the potential to prejudice the way the tribunal of fact views the accused.
What is tendency evidence? where defined?
Evidence Act dictionary.
Tendency evidence means evidence of a kind referred to in Secction 97(1) that a party seeks to have adduced for the purpose referred to in that section.
1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
The tendency rule?
Section 97
1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have SIGNIFICANT PROBITIVE VALUE.
How can tendency be relevant?
Evidence must go beyond merely that the accused is of bad character and is the type of person likely to commit the offence.
What is a tendency?
An inclination towards a particular type of behaviour.
Probative value?
The extent to which it is relevant.
rationally affect the assessment of the probability of the existence of a fact in issue.
Relevant evidence?
s55
evidence that if accepted could ratinally affect the assessment of the probability of the existence of a fact in issue in the proceeding.
Case on significant probative value?
R v Zhang
Significant suggests the evidence must do more than fulfil the basic requirements of 55(1)
Old case for Tendency?
Pfennig v The Queen
What test did Pfenig use?
Rational explanation test. Prior to statutory test.
whether there is a raional view of the evidence that is consistent with the innocence of the accused.
Case that reinforces statutory test for tendency?
R v Ellis (2003) 58 NSWLR 700
Resolved conflict between Evidence act and case law (pfennig) confirming stat test of 101 to be the prevailing test for admissibiity of tendency and coincidence evidence.
APplying Pfennig test is incorrect.
Room for 135 and 137 arguments on admission of tendency? Case?
Regina v Nagatikaura (2006) 161 A Crim R 329
S97 and 101 (2) provide tests for admission of tendency evidnce, no room for 135 and 137 arguments.
97 evidence Act?
Tendency evidence
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
98 Evidence Act
98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible 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 or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
101 evidence Act
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition tosections 97and98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
