Tendency & Coincidence

Question 1

What is Prejudicial v Probative?

Answer 1

• Almost always involves disclosure of prior criminal conduct
• Disclosure of prior conduct has the potential of prejudicing the way the tribunal of fact views the accused
• If admitted can lead to a miscarriage of justice
• Ability of the evidence to prove the fact may be so strong (NWS prejudice) that it would be an injustice to the community not to admit.

Question 2

What is tendency evidence?

Answer 2

Dictionary to 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).

Section 97 is the PERSON

Question 3

What is important to remember about Section 97 the Tendency rule?

Answer 3

The evidence MUST have significant Probative value.

Significant = the highest threshold in law.

Question 4

What is Coincidence Evidence?

Answer 4

Dictionary to Evidence Act:

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).

Section 98 = EVENTS

Not coincidence eve though it’s called coincidence.

Question 5

What is Section 100?

Answer 5

Reasonable notice in writing:
(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.

(5) The direction:
(A) is subject to such a condition (if any) as the court thinks fit, and
(B) may be given either at or before the hearing.

Question 6

What is significant probative value?

Answer 6

Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Section 55 Relevant Evidence:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

Question 7

What is an important case in relation to Probative Value?

Answer 7

Regina v Zhang

Question 8

What is important to know about Pfenning v The Queen?

Answer 8

Whether there is a rational view of the evidence that is consistent with the innocence of the accused.

Question 9

What is important to know about R v Ellis?

Answer 9

The case resolved around the conflict between the Evidence Act ad case law (pfenning test) by confirming the statutory test provided in section 101 of the Evidence Act to be the prevailing test of admissibility of tendency and coincidence evidence.

The ie of authority applying the common law Pfenning test to the statutory requirements for admissibility of tendency and coincidence evidence is incorrect.

Question 10

What is important to note about Discretion?

Answer 10

Regina v Ngatikaura

S 97 and S 101(2) provide the test for the admission of tendency evidence, in my opinion, they leave no room for the application also of either s 135 or s 137.

Question 11

What is an important case to remember which makes something admissible if you can explain why?

Answer 11

Atroushi v Regina

Question 12

What is important to remember about Tendency and coincidence?

Answer 12

• It is circumstantial evidence.
• Once adduced the prosecution must eliminate all rational hypothesis other than the guilt of the accused
• The test is to be applied to the whole of the evidence not parts of it.

Question 13

What is the possibility of concoction?

Answer 13

• Applies to tendency and coincidence evidence
• The possibility of concoction will have a devastating effect on the Probative value of the evidence
• More prominent i coincidence evidence
• The possibility of concoction provides for a new explanation for the similarities in the evidence
• The prosecution must eliminating/negative the possibility of concoction

Question 14

What is important to note about Hoch v The Queen?

Answer 14

‘His lordship there posited that the possibility of concoction - not a probability or real chance of concoction -served to render such evidence inadmissible. Indeed we think that must be right…’

If there is a possibility that the witnesses have concocted their stories, then the evidence will not e admissible.