Tendency & Coincidence

Question 1

What is Tendency Evidence?

Answer 1

Dictionary – ‘Tendency Evidence’ means evidence of a kind referred to in s97(1) that a party seeks to have adduced for the purpose referred to in that subsection

Question 2

What is the Tendency Rule and cite the Section of the Evidence Act where it is found.

Answer 2

The tendency rule is found at Section 97 of the Evidence Act

The tendency rule:
(1) Evidence of the character, reputation or conduct of a person, or
tendency that a person has or had, is not admissible to prove that a persons 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 that 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

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.

Question 3

What is Coincidence Evidence?

Answer 3

‘Coincidence Evidence’ means evidence of a kind referred to in s98(1) that a party seeks to have adduced for the purpose referred to in that subsection

Question 4

What is the Coincidence Rule and under which Section of the Evidence Act is the rule found?

Answer 4

The coincidence rule is found at Section 98 of the Evidence Act.

The coincidence rule:
(1) Evidence that two 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 coincidently 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 things 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

Evidence that two or more events occurred is not admissible to prove that it is improbable that the events occurred coincidently unless: (1) reasonable notice in writing is given to the other party and
(2) the evidence sought to be adduced has significant probative value.

Question 5

Where does it provide the requirements for notices?

Answer 5

Section 99 of the Evidence Act.

Section 99 states that notices given under s97 and s98 are to be given in accordance with any regulations
or rules of the court made for the purposes of this section.

Question 6

Can the Court dispense with notice requirements for T and C?

Answer 6

Yes. Section 100 states 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.

The Court may do so if the other party is not prejudiced or a pattern is obvious.

Question 7

What must a notice of tendency evidence state and where is this legislated?

Answer 7

Clause 5 of the Evidence Regulations.

1. A notice given under s97(1)(a) of the Act must be given in accordance with the requirements of this clause.
2. A notice of tendency must state:
   (a) . The substance of the evidence to which the notice relates; and
   (b) . If the evidence consists of, or includes, evidence of the conduct of a person, particulars of:
   (i) . The date, time, place and circumstances at or in which the conduct occurred; and
   (ii) . The name of each person who saw, heard or otherwise perceived the conduct.

Question 8

What must a notice of coincidence evidence state?

Answer 8

Clause 6 of the Evidence Regulations.

1. A notice given under s98(1)(a) of the Act must be given in accordance with the requirements of this clause.
2. A notice of coincidence must state:
   (a) . The substance of the evidence of 2 or more events that the party giving the notice intends to adduce; and
   (b) . Particulars of:
   (i) . The date, time, place and circumstances at or in which each of those events occurred; and
   (ii) . The name of each person who saw, heard or otherwise perceived those events.

Question 9

How is “significant probative value” defined? Cite caselaw

Answer 9

R v Zhang: The term “probative value” is defined to mean “the extent to which” the evidence is relevant evidence of the purpose of Section 55. The term “significant” suggests that the evidence must do more than fulfil the basic requirements of s55.

Question 10

What are some further restrictions on tendency and coincidence evidence adduced by the prosecution?

Answer 10

Section 101(2) states that Tendency 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.

Question 11

What was the test prior to Section 101 to determine the admissibility of T and C evidence?

Answer 11

Pfennig v the Queen - Whether there is a rational view of the evidence that is consistent with the innocence of the accused - the “no rational explanation” test.

This is the old test and it is no longer the “rational explanation test”.

R v Ellis resolved the conflict between S101 and the Pfennig test by confirming that the STATUTORY test is the prevailing test of admissibility.

Ellis states: “The line of authority applying the common law Pfenning test to the statutory requirements for admissibility of Tendency and Coincidence evidence is INCORRECT”. (If they apply the Pfenning test, it is an error at law and therefore appellable).

Question 12

Can T and C evidence be used for any other purpose (as in Section 60)?

Answer 12

S95 - T and C evidence that is not admissible or cannot be used against a party to proved a particular matter must not be used for any other purpose.

Question 13

What is relevant of relationship/context/background evidence? Cite caselaw

Answer 13

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 that the accused was sexually attracted to the complainant so that he had motive or in supporting an interference that the accused also was a person who was prepared to act on that motivation

Question 14

What is the test to be applied in relation to the possibility of concoction? Cite caselaw.

Answer 14

Hoch v the Queen - the possibility of concoction applies to T and C evidence and will have a devastating effect of the probative value of the evidence. It provides an explanation for the similarities in the evidence which must be eliminated/negatived by the prosecution. The “Hoch Test” provides that if there is a possibility that the witnesses have concocted their stories, then the evidence will not be admissible.

Question 15

Provide examples of Tendency and Coincidence

Answer 15

Tendency: 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.

Coincidence: 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 improbably that the events were coincidental (rather, they were by design).

Both Tendency and Coincidence Evidence of prior convictions for sexual offences or other prior illegal sexual conduct - often referred to as “uncharged acts” such as “grooming” behaviours.

Question 16

Tendency and Coincidence evidence is? What does it include?

Answer 16

T and C evidence almost always involves the disclosure of prior criminal conduct. (But it’s a no-no in the prosecution case).

The disclosure of prior conduct has the potential of prejudicing the way the tribunal of fact views the accused. (character evidence)

If admitted: can lead to a miscarriage of justice.

Ability of the evidence to prove the fact may be so strong (notwithstanding prejudice) that it would be an injustice to the community not to admit.

Question 17

Why is T and C evidence used?

Answer 17

It strengthens the matter.

Question 18

Under what section of the act is the “test” for T and C found?… and what is it?

Answer 18

Section 101 of the 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 to sections 97 and 98.
(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.

Question 19

Under what sections of the Act are the rules for Tendency and Coincidence found?

Answer 19

Section 97 - the rule for Tendency

Section 98 - the rule for Coincidence.

Question 20

Do you have to have either tendency or coincidence or can you run both?

Answer 20

You can run both (but need 2 separate notices).

Question 21

How can Tendency Evidence be relevant (s55)?

Answer 21

The evidence must go beyond merely that the accused is of bad character and is the type of person likely to commit the offence.

The evidence must bear in some relevant way to one of the issues in the case.

Question 22

What does Tendency relate to?

Answer 22

Tendency relates to the person (character).

Question 23

What does Coincidence relate to?

Answer 23

Coincidence relates to the events/circumstances.

With the coincidence rule the prosecution are saying “it’s not a coincidence”.

Question 24

What is the relevant word in Section 97 and 98?

Answer 24

The relevant word is “significant”. ie: the evidence must have significant probative value. It can be probative/relevant BUT with TandC it must have significant probative value - a high threshold. Goes beyond more than “merely”.

Question 25

In relation to the notices under Section 97 and 98, what is the reasonable period of time that the notices must be served?

Answer 25

There is no specific or express limit on what is reasonable

Question 26

What caselaw relates to the T and C notices and the detail they must entail?

Answer 26

Gardner v The Queen: states that the Notice “must have sufficient information/detail” Zhang later adopted this..

R v An says “a notice in general terms will not comply”.

Question 27

What is significant probative value? Where in the EA is the test to be applied?

Answer 27

The probative value of the evidence means the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue. When determining significant probative value it is the extent or degree of relevance that is being determined. How significant is the evidence? How substantial is the degree it will effect if something is relevant? The test for significant probative value to be applied is under s101 of the EA.

Question 28

Cite caselaw regarding significant probative value?

Answer 28

Regina v Zhang.

The court in Regina v Zhang stated: “the term “probative value” is defined to mean “the extent to which “the evidence is relevant evidence for the purposes of s55(1). The term “significant” suggests that the evidence must do more than fulfil the basic requirement of s55(1): see R v Lockyer and R v Lock.

R v Lockyer states “the word ‘significant’ used in the phrase significant probative value’ has been said to mean ‘important’ or ‘of consequence’.

R v Lock states: ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance.

Question 29

What type of evidence is tendency evidence and coincidence evidence?

Answer 29

Circumstantial evidence. Once adduced, the prosecution must eliminate all rational hypothesis other than the guilt of the accused. It is a balancing of prejudicial v probative. It almost always involves disclosure of prior criminal conduct. Disclosure of prior conduct has the potential of prejudicing the way the tribunal of fact view the accused. Cops events can prove a propensity to act in a certain way.

Question 30

What is the Tendency rule?

Answer 30

Section 97 The tendency rule

(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.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Question 31

What is the Coincidence rule and under which Section of the Evidence Act is the Coincidence Rule found?

Answer 31

Section 98 of the Evidence Act - 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.

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Question 32

Where are the definitions of Tendency Evidence and Tendency Rule and Coincidence Evidence and Coincidence Rule found?

Answer 32

In the dictionary section of the Evidence Act.

Tendency evidence means “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection”.

Tendency rule means: Section 97(1).

Coincidence evidence means “evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection”.

Coincidence rule means: Section 98(1).

Question 33

What are the two requirements under Sections 97 and 98

Answer 33

1. Reasonable notice in writing given.

2. Must have SIGNIFICANT PROBATIVE VALUE

Question 34

In relation to the reasonable notice in writing to adduce tendency or coincidence evidence, can a court dispense with the notice requirements?

Answer 34

Yes. Section 100 states that a Court may dispense with notice requirements.

100(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97.

(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98.
(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(4) In a civil proceeding, the party’s application may be made without notice of it having been given to one or more of the other parties.

(5) The direction:
(a) is 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 the court’s power to impose conditions under this section, those conditions may include one or more of the following:
(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party,
(b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence,
(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

Question 35

What three things must be done to comply with Section 101?

Answer 35

1. Identify the probative value
2. Identify the prejudicial effect
3. Weigh them agains each other.

Question 36

Does Discretion apply in relation to tendency and coincidence evidence admissibility? Cite caselaw.

Answer 36

Regina v Ngatikaura (2006) found that:

“Section 97 and S101(2) provide the tests for the admission of Tendency evidence; in my opinion they leave no room for the application also of either Section 135 or Section 137”.. ie: same test so can’t apply twice.

Question 37

What is the Hoch test and how is it applied?

Answer 37

Applies to T and C evidence.
“The ‘possibility’ of concoction will have a devastating effect on the probative value of the evidence. The prosecution must eliminate/negative the possibility of concoction.
In order to lead T and C evidence the prosecutor needs to apply the Hoch test. The tribunal of law will apply the same test during the hearing.
If there is a POSSIBILITY that the witnesses have concocted their stories then the evidence will not be admissible.

Question 38

What did IMM v R [2016] HCA discuss?

Answer 38

IMM discusses that the credibility and reliability of a witnesses’ evidence are not considerations in determining probative value. The test is relevance. Once it is admitted for relevance, then the jury applies the tests of credibility and reliability.

Question 39

What did the HCA case of Hughes v The Queen [2017] find?

Answer 39

In summary, there is likely to be a height degree of probative value, where:

(i) . The evidence, by itself or together with other evidence, strongly supports proof of a tendency, and
(ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

It is a 2 part test. 1. There is a tendency. 2. The tendency supports the prosecution.

Overrode the previous case of Velkoski (Victorian case).