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Tendency And Coincidence Notes

Law Notes > Litigation 2 - Evidence Law Notes

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Lit 1516 Tendency/Coincidence

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Table of Contents

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Tendency evidence Checklist

1. What is the relevance of the evidence?
a. (Tendency evidence will ordinarily be relevant to a fact in issue in proceedings by seeking to establish a relevant propensity and that propensity is 'a link in the process of tending to show that the person did in fact behave in the particular way alleged in the case': Jacara v Perpetual Trustees ) b. Is the evidence capable of rationally affecting the assessment of the probability of a fact in issue in a significant extent - s 55 - if not then inadmissible under s 56

2. What is the purpose of the tender of the evidence?
a. Tendency? OR: b. Context?
c. Res gestae / O'Leary?
d. State of mind?
e. Admission? eg OGD f. If for defence: need to argue it's been using for a tendency purpose.

3. Exceptions in s 94?
a. Credibility evidence: s 94(1) Evidence that relates only to credibility of a witness excepted from this. (eg if evidence discloses a tendency to lie, which is relevant only to a witness' credibility, then Part 3.6 with provisions s 9798 do not apply). i. See s 102 and its exceptions. b. Bail or sentencing proceedings: Part doesn't apply: s 94(2) c. If character/reputation/conduct/tendency is a fact in issue: this part doesn't apply to evidence of that: s 94(3)

4. Exception for character evidence admitted under s 110 or 111?

5. Req 1# for adducing: reasonable notice been given: s 97(1)(a ) and s 99 a. Exception (a): evidence adduced under direction made under s 100: s 97(2)(a) b. Exception (b): evidence adduced to explain/ contradict tendency evidence adduced by another party s 97(2): s 97(2)(b)

6. Req 2#: evidence has significant probative value: s 97(1)(b) a. Does the evidence considered with all other evidence have SPV?
b. Think about reasonable possibility of concoction - that will undermine PV.

7. If crim proceeding led by prosecution against D - additional Req 3#: the probative value of the evidence must substantially outweigh the prejudicial effect: s 101. Must (i) identify prejudice, (ii), identify what judge can do to ameliorate prejudice. a. Exception; s 101(3)

8. Directions?

9. Issue 4#: Limit evidence? S 136 - Or exclude under s 135 7

1. What is the relevance of the evidence?

* Is the evidence capable of rationally affecting the assessment of the probability of a fact in issue in a

*

*

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significant extent - s 55- if not then inadmissible under s 56 Tendency evidence will ordinarily be relevant to a fact in issue in proceedings by seeking to establish a relevant propensity and that propensity is 'a link in the process of tending to show that the person did in fact behave in the particular way alleged in the case': Jacara The tendency does not have to be tendency to commit a crime, just tendency to act in a particular way/ have a state of mind: R v Li (eg evidence that showed a tendency to be abusive and controlling, was relevant to whether he by his action effectively 'detained her' on a specific night - not necessary to show previous detentions).

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2. What is the purpose of the tender of the evidence? S 97(1). Consider alternatives. PROHIBITE D PURPOSE

Other purposes

List of all cases

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The tendency purpose: Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had tendered 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: s 97(1) (Inadmissible to prove this unless compliance with s 97(1)(a) and (b)). The tendency does not have to be tendency to commit a crime, just tendency to act in a particular way/ have a state of mind: R v Li Evidence may be relevant and admissible even though it may have some tendency relevance if it is tendered to: a) Be background or context evidence, or prove relationship b) O'Leary doctrine cases: Prove conduct which is part of the same connected series of events making the events effectively one transaction: R v Adam; applying O'Leary c) Prove state of mind of another person: R v Fordhma d) Rebut evidence of good character: OGD e) Disprove coincidence: s 98 All cases:

* Evidence relevant for (1) relationship evidence, revealing aspect of marital relationship and relevant to motive to kill, (2) relevant as evidence of an act preparatory to murder, not to tendency: Conway - Evidence that accused had put heroin in the deceased's coffee about a week before she died as part of plan to make it look like she was a heroin user and to make her death to appear to be a self
administered overdose.

* Evidence relevant as disclosing connected series of events that was one transaction, as otherwise evidence of only particular events could not be understand insolated from integral parts: O'Leary - accused's general violent conduct served to explain his hostile state of mind at time of offence

* Evidence relevant for character and credibility purpose - OGD

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(a) Context> (i) relationship (ii) state of mind (iii) O'Leary evidence: R v AN; Conway; Li; Adam;

Serratore; Nguyen; RG; Lock IS the evidence adduced to prove a context, to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any reason? Then not tendency evidence: R v AN; Beserick; R v AH; Wilson Relevant because: Adduced to prove a context and assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any reason: R v AN - (to shut off the jury from the relationship is to require them to decide if it happened in a vacuum: Wilson v R). Three purposes for context evidence: (1) Reveal a relationship (eg anything abut their dealings and attitudes towards each other: Clark) - to understand the evidence of the complainant and his/her response to the alleged acts can be understood with a complete understanding of the alleged relationship: Conway; Boney (2) Reveal a state of mind, and (3) Reveal an O'Leary style series of connected events (that includes the offence). ( eg Samadi; Adams; Nguyen; Serratore)

* Req: Relationship evidence must be relevant with a significant level of specificity to explain to the jury 'what happened and why it happened': R v AN; Wilson; Harriman; Marsh - must go beyond setting a background to allegations. (1) Evidence * Show deteriorating marriage sometimes accompanied by violence and attempts to control of complainant, allegations of affairs, separation, divorce, requests by appellant to revive relationship marriage and complainant's refusal: R v Li (Dunford J, Spigelman CJ agreeing) - this evidence was also admissible as tendency evidence for the first count of detaining for advantage, but not for assault.

* Evidence of motive and relationship: In Conway - D's evidence of putting heroin in deceased's coffee wek before he engaged someone to murder deceased with heroin overdose - was motive to kill by revealing an aspect of marital relationship. And as an act of preparation for the murder of the deceased.

* Evidence of tense relationship between accused and victim in Clark - Evidence had been admitted without contention that Lock had: (a) that D had hit Lock (b) D had difficulties with Lock in business (c) had been upset to see Lock in bed with mum where Lock had an actual or desired sexual relationship with D's mum (d) D asked Lock to leave house and she was slow to do this and threatened to damage his property. D challenged the admission of evidence that prior to Lock's disappearance she had expressed fear of Clark.

* Explain why father and daughter slept in same bed and why she didn't tell anyone after he touched her genitalia: R v RG Crown case that father had assaulted daughter. Slept together. Father touched daughter's genitalia. She rolled over and didn't tell anyone for months. Background evidence: father insisted on touching daughters all over bodies and showered with them and slept naked with daughter for years. Crown wanted to lead all evidence of tendency evidence - but context evidence - to put the unusual relationship into context. To explain why it was that she rolled over and went back to sleep and hwy they were in bed in the first place. If crown hadn't led evidence then jury may have thought that the incidents were farfetched or unlikely. Led as context, not tendency evidence.

* Evidence of regular abuse showed circumstances: Fordham - evidence of previous and subsequent regular physical abuse adduced for 3 purposes , first being to show surrounding circumstances in which alleged acts took place.

* Complainant's lack of surprise at being called to gratify appellant's sexual desires and her matter of fact recounting of the incident. Regularity with which incidents occurred explains failure to mention incident to mother and accused's confidence: Gipp v R; R v AN

* Show why complainant feared accused: R v WJT

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(2) State of mind/
motive evidence

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(3) o'leary chain of events

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Why complainant continued to submit to accused and failed to repel him or why she failed to show distress or complain or why the accused was able to commit indecent acts upon her on the occasion charged: Harriman Hostile state of mind, applying O'Leary: Adam - evidence to show prior to crime accused was in a hostile frame of mind gained its relevance because t was so close in time to stabbing it permitted inference that state of mind continued up to offence: Evidence of rampage over a night: O'Leary - evidence of assaulting others. In McIntyre - evidence of appellant's sexual interest in deceased (whose genitals had been mutilated) was admissible relevant because it showed probability on appellant having sexual preoccupation with decease. In Fordham: to prove state of mind of D (ie knowledge of lack of consent to assault)

State of mind of complainant?

* To prove that complainant believed that accused had a tendency to violence, not to prove a tendency: Hancock - Charge of assault against H attacking C. H claimed selfdefence. C crossexamined about tendency to violence. C admitted to attacking man with a hammer and that she had told Hancock about this. Admissions not caught by s 97 because they were adduced to show that Hancock believed C had a tendency to violence, not to prove C's tendency in that respect.

* To prove belief that D had assaulted others to explain why V did not call out: Preston

* In Fordham: second and third purposes (2) to prove complainant's state of mind and Test: whether the events form an integral part of a connected series of events - such that to sever the evidence means that the events can't be understand but only presented as an unreal and not very intelligible event: O'Leary (Dixon J) Case examples:

* Evidence of rampage showed hostile state of mind: O'Leary

* Evidence of hostile staring showed hostile state of mind: In R v Adam, the evidence of the appellant staring at someone was an integral part of connected series of events happening on that night, which included the alleged assault and which couldn't be understood without reference to that evidence wasn't tendency

* Evidence of showing penis led to show sexual state of mind: LGW, applying O'Leary- assault when uncle made everyone sleep in same bed and then assault V. Led evidence that he had penis out in the car earlier that day. Relevant to state of mind.

* A 5 month gap in events (conversations and a murder) was 'context evidence' admissible under O'Leary: Serratore - considered in the context of an on and off volatile relationship, the conversations and murder were part of a continuum, the trial judge held the conversations as being 'reasonably proximate' with the murder. What didn't fall within O'Leary:

* Context/relationship evidence outside of O'Leary in Nguyen: evidence captured on surveillance tape and occurred after assault of victim - it showed victim's brother attempting to enter club where D had gone armed with brick, he was prevented and he returned to victim, armed himself with a star picket and returned towards club, and this time he was attacked by D, fight ensued until brother struck D unconscious: Nguyen. Trial judge held this wasn't part of same transaction as assault on victim. Incorrectly held that it still 'showed the nature of the relationship between the two groups of young men... and that accused was prepared to use a most violent and dangerous form of physical attack' this should have been excluded according to Court of Appeal.

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