Tendency & Coincidence Evidence Flashcards
s 94
Application
(1) This Part does not apply to evidence that relates only to the credibility of a witness.
(2) This Part does not apply so far as a proceeding relates to bail or sentencing.
(3) This Part does not apply to character or tendency evidence if that character, reputation, conduct or tendency is a fact in issue.
s 95
Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
s 96
Failure to act
A reference in this Part to doing an act includes a reference to failing to do that act.
s 97
The tendency rule
(1) Tendency evidence (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind is not admissible unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party
(b) the court thinks that the evidence will… have significant probative value.
s 97A
Admissibility of tendency evidence in proceedings involving child sexual offences
presumption of probative value
s 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…
(b) the court thinks that the evidence will… have significant probative value.
s 99
Requirements for notices
Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
s 100
Court may dispense with notice requirements
s 101
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 outweighs the danger of unfair prejudice to the defendant.
ss (3)-(4) this section doesn’t apply if the prosecution is adducing the evidence to contradict tendency or coincidence evidence led by the defence.
Criminal Procedure Act 1986 (NSW)
s 294CB
Admissibility of evidence relating to sexual experience
Evidence of past sexual conduct is not admissible.
Hughes v R
Significant probative value:
Hughes → 2 step process
To what extent does that evidence show a tendency?
To what extent does it show that he did on this occasion? (more than he did it before, so he must have done it again)
The tendency conduct does not have to be the same kind of conduct as the facts in issue to have probative value.
No longer applies in child sexual assault cases, but applies generally.
R v Ellis
What does s 101 mean?
In this case, it was held that prior common law did not apply (Pfennig etc) because the Act has its own scheme for this evidence and it is just a balancing exercise of probative value against prejudicial effect.
IMM v The Queen (2016) 257 CLR 300
Gageler J described the test of ‘significant probative value’
