#9231 - Tendency And Coincidence - Evidence Law

The essential nature of evidence that has a dual function (goes to the credit of the party and also to the facts in issue) is that a party’s past acts show that person to have a certain disposition or propensity to act, think or feel in a particular way.

If the prior acts do not amount to misconduct, but are praiseworthy, the admissibility of the evidence proving these acts will usually depend simply upon the rules as to credibility. However if they are improper, the similar fact evidence exclusion rule must be considered

Why do we have this rule? The mere wrongfulness associated with such acts suggests a disposition towards wrongdoing and this alone would cause a jury to look upon an accused with disfavour. However it is equally important that, although the disposition that these prior acts show is clearly sufficient to suggest the accused may have committed the crime charged, proof of these earlier acts is not usually sufficient to prove that an accused actually committed the crime in question. Probative value is weak, and prejudicial value is high.

If it is prior proper conductr

Summary – Tendency and Coincidence

• Assess whether the evidence could be tendency evidence, coincidence evidence, or both, and state why

  • Tendency evidence

    • Evidence used to show that an individual has a tendency to act in a particular way

  • Coincidence evidence

    • Evidence used to show that a person did an act or had a state of mind on the basis that multiple events occurred and it is improbable that those events occurred coincidentally

• What do these parts apply to?

  • Does not apply to evidence that relates only to the credibility of a witness 94(1)

  • Does not apply to a proceeding which relates to bail or sentencing 94(2)

  • Does not apply to evidence of the

    • Character, reputation, conduct

    • or tendency that a person has

    • if that character, reputation, conduct or tendency is a fact in issue 94(3)

  • Where evidence is not to be adduced to prove a particular matter, it must not be used to prove that matter even if relevant for another purpose 95

    • Where the evidence is admissible for that other purpose but is not admissible under Part 3.6, it cannot then be used to prove the Part 3.6 matter

  • It is a use rule, thus is evidence of a person’s prior conduct is not adduced for tendency reason it will not be caught by the section, but you must demonstrate that the evidence is relevant to a fact in issue (which doesn’t involve tendency/coincidence reasoning)

• List all the factual similarities and dissimilarities. Decide if there is significant probative value to satisfy section 97 and/or 98

  • Tendency evidence s 97 EA: Evidence is not admissible to prove that a person has a tendency to act in a particular way or to have a particular state of mind, unless (a) notice is given, and (b) it has, in regard to all the evidence adduced, significant probative value

    1. Has notice been given?

       • Must give reasonable notice in writing to each other party of the party’s intention to adduce the evidence

       • Notice requirement doesn’t apply if the evidence is adduced to explain or contradict tendency evidence adduced by another party 97(2)(b)or the evidence is adduced in accordance with any direction made under section 100 97(2)(a)

       • Section 100: Court, on application by a party, can direct that the tendency rule is not to apply to evidence despite a party’s failure to give notice (1)

    2. Does it show a tendency to act in a particular way?

       • Tendency refers to evidence of character, reputation or conduct that is adduced to prove that the accused acted in a particular way or had a particular state of mind. DEFINE

       • Requires the jury to be able to prove at least one occurrence of the behaviour beyond reasonable doubt (thus much easier to prove if the person has a previous conviction for a particular behaviour)

         • Section refers to tendency to act in a particular way, not to commit a particular crime, therefore similarities may relate to surrounding circumstances MR v R

       • There must be significant or remarkable similarities so that there is some underlying unity between the evidence and the offence charged. Because the accused has done this in the past, it shows a tendency to do this, which may suggest that he committed this crime.

         • A similar modus operandi is often very important.

         • The link between the prior misconduct and the relevant fact in issue must be compelling Straffen

         • Might help to prove the intent of the accused (if that is what is in issue) Mortimer (1936)

       • Unlike coincidence evidence, similarities in circumstances are not required, though they are still useful

       • You can infer evidence then use it as tendency evidence (strong circumstantial evidence) Pfennig

    3. does it have significant probative value? (It is important?)

• Coincidence evidence s 98 EA: Evidence that two or more events occurred is not admissible to prove a person did an act or had a particular state of mind, on the basis that, having regard to the similarities in the circumstances, it is improbable that the events occurred coincidentally (a) unless notice is given, and (b) the evidence will, in regard to all the evidence adduced, have significant probative value

  1. Has notice been given?

     • Must give reasonable notice in writing to each other party of the party’s intention to adduce the evidence

     • Notice requirement doesn’t apply if the evidence is adduced to explain or contradict tendency evidence adduced by another party 98(2)(b)or the evidence is adduced in accordance with any direction made under section 100 98(2)(a)

     • Section 100: Court, on application by a party, can direct that the tendency rule is not to apply to evidence despite a party’s failure to give notice (2)

  2. Having regard to the similarities, is it improbable that the event occurred coincidentally? Improbably that it was done by different people

     • Applies to events that are substantially similar or which occurred in substantiality similar circumstnaces

     • Not necessary for either of the events to be proven to establish that coincidence evidence should be adduced

     • To show it should be adduced, “the touchstone is similarity” PNJ v DPP

       • Events must be so similar that it is improbable that they occurred coincidentally

       • Must have striking similarities, or underlying unity, not enough that events are repeated DPP v Boardman

         • Alleged similarities must not be stated too generally

           • Must specify a particular act. Touching sexually is not particular enough CGL v DPP

           • These may be shown by a specific mode of offending, specific circumstances, or how the person is alleged to have taken advantage of the setting.

           • System, patterns

       • Might include a relationship which uniquely links the accused person with two or more victims of similar crimes CW

       • Circumstances not in a person’s control are not relevant PNJ

         • Look to whether there is an element of choice by the D as to where it occurred.

     • Can be used to make conclusion with any of several bases (pick one)

       • Can show that a crime in fact occurred

         • In Makin, the death had a connecting feature (found in premises in which the accused had lived), human agency was involved (the bodies had been concealed by burial) and there was a large number of them = all which suggests that the death were brought about by design and not accident

         • Regularity of conduct may be relevant Martin 1936 CLR

       • Can show an likelihood that certain acts were done by the same person Sutton

       • Can show an unlikelihood that a crime was not committed Makin; Perry

       • Can show an unlikelihood that a story was made up (the improbability of similar lies) Hoch,

         • Likelihood of contamination (including collusion between the parties giving evidence) is taken into account in assessing probative value PNJ,

         • If there is “any real possibility” that complainants have colluded, the similar fact evidence must be excluded Boardman v DPP

         • If in committal proceedings their statement indicate they had no relationship, probably admissible. However if they had motive for concoction, then it will lack probative force Hoch

  3. Does this have significant probative value? (It is important?)

• In criminal proceedings, decide if, under s 101(2), the probative value substantially outweighs the prejudice to the defendant

  • In criminal proceedings, evidence that satisfied section 97 or 98 is still not admissible unless, according to section 101 EA, its probative value substantially outweighs its prejudicial effect on the defendant

    • Does not apply to tendency evidence that the prosecution adduced to contradict or explain...