Tendency & Coincidence Evidence

Question 1

Tendency and Coincidence evidence is guided by
A) Which Act?
B) Which case law decision?

Answer 1

A) Evidence Act 1995 -
S97 (Tendency) the rules as to what evidence may be relied upon to establish an accused’s tendency to act a certain way.

S98 (Coincidence) similarities between one event and other event(s) could not be explained by mere coincidence.

B) R v Ellis 1995 - settled the statutory regime (evidence act) for admitting tendency and coincidence evidence.

Question 2

Summarise the finding of R v Ellis

Answer 2

R v Ellis: makes it clear that the Evidence Act determines admissibility in this area and not the prior common law principals.

Question 3

Summarise the findings of R v Fletcher 2005?

Answer 3

Her honour justice Simpson stated that common law principals may be used as a guide in the evaluation of the admissibility of evidence today.

The modus operandi in the accused’s behaviour established the requisite tendency. Parish priest developed ‘special relationships’ with families and their children.

Question 4

What provisions of the Evidence Act govern Tendency and Coincidence Evidence?

Answer 4

Evidence Act 1995
(Part 3.6)
Sections 94 to 101

Question 5

Where can the legal definition of Tendency and Coincidence evidence be found?

Answer 5

Tendency and Coincidence Evidence are defined separately in the Dictionary to the Evidence Act as evidence of a kind referred to in sections 97(1) Tendency, and 98(1) Coincidence.

Question 6

Section 97(1) of the Evidence Act contains ‘The Tendency Rule’

What criteria must be met for Tendency evidence to be admissible?

Answer 6

1) Evidence of character, reputation, conduct and; tendency of a person.

Not admissible unless:

1) (a) Reasonable notice is given to the other party in writing…
1) (b) Significant Probative Value!!!

Question 7

Section 98(1) of the Evidence Act contains ‘The Coincidence Rule’

What criteria must be met for Coincidence evidence to be admissible?

Answer 7

1) Evidence of 2 or more events…

Not admissible unless:

1) (a) Reasonable notice is given to the other party in writing…
1) (b) Significant Probative Value!!!

Question 8

What evidence can be treated as Tendency evidence?

Answer 8

• Does not have to demonstrate the accused has a tendency to commit acts closely similar to the crime for which they have been charged.
• The tendency does not have to have been manifested on many occasions.
• The evidence does not have to contain striking similarities.
• A pattern of behaviour and/or the similarity of the Surrounding Circumstances of the Offences alleged, or modus operandi may be enough to establish tendency.

Question 9

What does R v Ford 2009 explain?

Answer 9

R v Ford 2009 - explains the accused was charged with three different sexual assaults on different women while they were asleep after drinking in his home. The crown gave notice re the accused’s Tendency to assault the women in such circumstances.

His honourable Justice Campbell allowed the tendency evidence.

Question 10

In R v Tektonopoulos 1999 the Crown tendered propensity evidence to prove the accused person’s identity. Briefly summarise the finding?

Answer 10

Propensity evidence (now known as Tendency) is admitted with great caution; as the jury may exhibit prejudice to the accused.

The courts have insisted such cases used to identify the accused as an offender require “Something in evidence, in the nature of ‘Striking Similarity’ with the offences charged, which strongly points to the accused as the offender.

Question 11

The strength of Tendency evidence can be assessed on what 7 points?

Answer 11

• The number of occasions of particular conduct.
• The time gap(s) between them.
• The degree of specificity of the conduct /alleged tendency.
• The degree of similarity between the conduct on various occasions.
• The degree of similarity of the circumstances which the conduct took place.
• Whether the tendency evidence is disputed.
• Whether the evidence is adduced to explain or contradict tendency evidence adduced by a party.

Question 12

According to Common Law and prior to the Evidence Act; Tendency and; Coincidence was know as what?

Answer 12

Propensity and Similar Fact evidence.

Question 13

Specific exemptions to the Tendency rule are detailed in sections 110 and 111 of the Evidence Act. What does each section refer to?

Answer 13

S110 - The defendant can raise evidence they are of good character. The hearsay, opinion, tendency and credibility rules do not apply.
- But if they do; any evidence to prove they are not of good character can be adduced as an exemption to those rules.

S111 - The hearsay or tendency rules do not apply to evidence of the defendants character; by another defendant or Expert witness.

Question 14

Section 98 of the Evidence Act explains Coincidence Evidence.

Describe Coincidence Evidence using key words?

Answer 14

Coincidence Evidence is evidence that TWO or MORE EVENTS occurred.

And it is not admissible unless it has SIGNIFICANT PROBATIVE VALUE.

Question 15

Section 97 of the Evidence Act explains Tendency Evidence.

Describe Tendency Evidence using key words?

Answer 15

Tendency Evidence is evidence of the CHARACTER, REPUTATION, CONDUCT or TENDENCY of a person.

And it is not admissible unless it has SIGNIFICANT PROBATIVE VALUE.

Question 16

In Sutton v The Queen - Justice Mitchell summarised Coincidence evidence.

Using key words briefly describe his summary?

Answer 16

Sometimes there may have been such a STRIKING SIMILARITY between two acts that a jury may be satisfied beyond a reasonable doubt that the person who committed on set of acts must have committed the other.

In this case the accused put a certain stamp on the crime, like a signature act.

Question 17

Three cases help guide what evidence can be treated as coincidence.

Name the case law.
And reference each type of case.

Answer 17

R v Folbigg
Katleen Folbigg killed her four children & GBH to one of them prior to their death. The court was satisfied that the similarities between the events made it improbable they occurred coincidentally.

Samadi v R
The court found 13 similarities between the events of the administering a stupefying drug to 12 people in order to steal their property.

R v Ellis
The coincidence was founded on a number of alleged thefts by the accused using unusual window removal techniques.

Question 18

Neither tendency nor coincidence evidence can be admitted without what?

Answer 18

SIGNIFICANT PROBATIVE VALUE

Question 19

Define PROBATIVE VALUE

Answer 19

The extent to which the evidence could rationally affect the assessment of the probability of the existence if a fact in issue.

Question 20

What does DAO v R summarise regarding SIGNIFICANT PROBATIVE VALUE?

Answer 20

The question of probative value is a question of relevance. Evidence has significant probative value if its degree of relevance to the events given rise to the offence charged is clearly and strongly probative of the relevant fact in issue.

Question 21

Section 101 of the Evidence Act places a restriction on the use of Tendency and Coincidence evidence. What is that restriction?

Answer 21

Tendency and Coincidence evidence tendered by the prosecution - Cannot be used against the accused unless its probative value outweighs any prejudicial effect it may have on the accused.

This rule does not apply when the prosecution adduces the evidence to explain or contradict the accused’s tendency or coincidence evidence.

Question 22

What is the test of a prejudicial effect?

Answer 22

Whether it involves a risk of an unfair trial.

Question 23

Before tendency or coincidence evidence can be relied on, the party seeking to adduce the evidence must do what?

Answer 23

Must have given the other party reasonable notice in writing of the intention to adduce the tendency evidence.

In accordance with Evidence Act
97 (1)(a) - Tendency
98 (1) (a) - Coincidence

Question 24

The Evidence Regulation 2010 Clauses 5 and 6 set out what a notice of tendency evidence or a notice of coincidence evidence must state and the particulars they must contain.

What 3 points do these details include?

Answer 24

• The substance of the evidence intended to be adduced.

- The date, time, place and circumstance at or in which the conduct (tendency) or events (coincidence) took place.

Question 25

The R v Zhang decision stated that a properly set out section 98 (coincidence) written notice involves identification of what four matters?

Answer 25

i) The two or more related events - subject of the proposed evidence.
ii) The person whose conduct or state of mind is the subject of the proposed evidence.
iii) Whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that ‘act’ is.
iv) Whether the evidence is to be tendered to establish that the person had a particular state of mind, and, if so, what that ‘state of mind’ was.

Question 26

If either the prosecution or accused seek to adduce tendency or coincidence evidence and it is not admitted; but is sought to be adduced for another purpose, what can be done?

Answer 26

Tendency and Coincidence evidence may not be admitted if it does not meet the legislative and case law requirements.

It may be admitted For Other Purpose in accordance with section 95 of the Evidence Act 1995.