Tendency & Coincidence Flashcards
What is the Tendency Rule?
s97 - Evidence of tendency is not admissible to prove a tendency to act in a particular way unless:
(1) Reasonable notice in writing is given to the other party, and
(2) The evidence sought to be adduced has significant probative value
What is the Coincident Rule?
s98 - Evidence that two or more events occurred is not admissible to prove that it is improbable that the events occurred coincidentally unless:
(1) Reasonable notice in writing is given to the other party, and
(2) The evidence sought to be adduced has significant probative value
Under what section does it state that notice is required for Tendency & Coincidence evidence?
s99 provides that notices required by s97 and s98 are to be given in accordance with the rules and regulations of the court.
Can the court dispense with notice requirements of s99?
Yes - s100 provides that the court may dispense with notice requirements on the application of a party either before or after the time by which the party would be required to give notice.
Examples of when the court may do so is when the other party is not prejudiced or a pattern relied on is obvious.
What must a notice of Tendency Evidence state?
Clause 5 states that a notice given under s97 must state:
(a) the substance of the evidence to which the notice relates, and
(b) if the evidence consists of evidence of a conduct of a person, particulars of (i) date, time, place and circumstances in which conduct occurred and (ii) the name of each person who perceived conduct
What must notice of Coincidence Evidence state?
Clause 6 provides that a notice under s98 must state:
(a) The substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce, and
(b) Particulars of (i) date, time, place and circumstances in which each of those events occurred and (ii) the name of each person who perceived each of those events
How is ‘significant probative value’ defined?
R v Zhang - The term “probative value” is defined to mean the extent to which the evidence is relevant for the purposes of s55. The term “significant” suggests that the evidence must do more than fulfil the basic requirements of s55.
What restriction applies to tendency and coincidence evidence adduced by the prosecution?
s101 - Tendency or coincidence evidence about a defendant that is adduced by the prosecution cannot be used unless the probative value of the evidence SUBSTANTIALLY outweighs any prejudicial effect it may have.
What was the test applied prior to the introduction to s101 to determine the admissibility of tendency and coincidence evidence?
Pfennig v the Queen - OLD TEST - Whether there is a rational view of the evidence that is consistent with the innocence of the accused - the ‘no rational explanation’ test
How was the conflict between s101 and the Pfennig test resolved?
R v Ellis - Resolved the conflict between s101 and the Pfennig test by confirming that the statutory test is the prevailing test of admissibility.
Can tendency and coincidence evidence be used for any other purpose (as in s60)?
s95 - Tendency and coincidence that is not admissible or cannot be used against a party to prove a particular matter must not be used for any other purpose.
What is the relevance of context evidence?
R v Leonard - It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant’s account, in supporting an inference of motive of the defendant or supporting an inference that the defendant was a person who was prepared to act on that motivation.
What test applies to the ‘possibility of concoction’?
Hoch v the Queen - The possibility of concoction will have a devastating effect on the probative value of tendency and coincidence evidence. It provides an explanation for the similarities in the evidence which must be eliminated by the prosecution. The “Hoch Test” provides that if there is a possibility of concoction then the evidence will not be admissible.
Provide an example of Tendency evidence
Evidence may be adduced to show that, because the defendant engaged in sexual activity with one child in his or her family, the defendant has a tendency to commit such acts. This evidence may have probative value in relation to allegations of sexual assault against other children in the family.
Provide an example of Coincidence evidence
Evidence may be adduced to show that a defendant engaged in sexual activity with two children in similar circumstances - for example, when another parent was absent. The evidence about one allegation may have probative value in relation to the other because it is improbable that the events were coincidental (rather than by design).
