#8544 - Tendency And Coincidence - Litigation 2

Tendency evidence 2

1. What is the relevance of the evidence? 2

2. What is the purpose of the tender of the evidence? S 97(1). Consider alternatives. 3

(a) Context> (i) relationship (ii) state of mind (iii) O’Leary evidence: R v AN; Conway; Li; Adam; Serratore; Nguyen; RG; Lock 4

(b) Admission? eg OGD (not covered in course) 6

3. If tendency evidence – Exceptions in s 94 for (a) credibility evidence (eg tendency to lie) (b) bail or sentencing proceedings (c)when tendency/character is in issue. 6

4. Exception for character evidence? S 110 and s 110 see character notes. 6

5. Req 1# for adducing: reasonable notice been given: s 97(1)(a) complying with s 99 6

Exception (a): evidence adduced with direction under s 100: s 97(2)(a) 6

Exception (b): evidence adduced to explain/ contradict tendency evidence adduced by another party s 97(2): s 97(2)(b) 6

6. Req 2#: evidence has significant probative value (by itself/with other evidence): s 97(1)(b) 8

7. If led by Crown against D – Req 3#: the probative value of the evidence must substantially outweigh the prejudicial effect: s 101(2); Ford; GAC 10

Exception: s 101(3) (for rebuttal evidence) 11

8. Directions by judge (from s 95, s 136; R v Li, R v OGD - must be specific) 11

9. After stuff: Limit evidence? S 136, exclude under s 135 or 137 see other notes. 11

Coincidence evidence 12

1. Relevant evidence? S 55, 56 13

2. Is it led for a coincidence purpose? Or something else? 13

Context: (i) context? (ii) state of mind? (iii) O’Leary?/ res gestae? 13

Admissions etc 13

3. Req 1#: Reasonable notice been given? Under s 98(1)(a) 13

4. Req 2#: Does the evidence when considered with all the other evidence have significant probative value? S 98(1)(b); CGL v DPP; Samadi 13

5. If coincidence ev about the D from the Crown: Req 3#: Then s 101(2) – probative value substantially outweigh prejudicial effect it may have (Samadi; CGL v DPP; Ellis; Perry) 14

6. Directions – under s 95: OGD 15

7. Limitation under s 136, Exclusions under ss 135, 137 see other notes. 15

Appendix to Tendency/Coincidence: ss 94, 96-101 16

94 Application 16

97 The tendency rule 16

98 The coincidence rule 16

99 Requirements for notices 16

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution 17

Checklist

What is the relevance of the evidence?
1. (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 )
2. 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
What is the purpose of the tender of the evidence?
1. Tendency? OR:
2. Context?
3. Res gestae / O’Leary?
4. State of mind?
5. Admission? eg OGD
6. If for defence: need to argue it’s been using for a tendency purpose.
Exceptions in s 94?
1. 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 97-98 do not apply).
  1. See s 102 and its exceptions.
2. Bail or sentencing proceedings: Part doesn’t apply: s 94(2)
3. If character/reputation/conduct/tendency is a fact in issue: this part doesn’t apply to evidence of that: s 94(3)
Exception for character evidence admitted under s 110 or 111?
Req 1# for adducing: reasonable notice been given: s 97(1)(a) and s 99
1. Exception (a): evidence adduced under direction made under s 100: s 97(2)(a)
2. Exception (b): evidence adduced to explain/ contradict tendency evidence adduced by another party s 97(2): s 97(2)(b)
Req 2#: evidence has significant probative value: s 97(1)(b)
1. Does the evidence considered with all other evidence have SPV?
2. Think about reasonable possibility of concoction – that will undermine PV.
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.
1. Exception; s 101(3)
Directions?
Issue 4#: Limit evidence? S 136 – Or exclude under s 135 - 7

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
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).

PROHIBITED PURPOSE	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
Other purposes	Evidence may be relevant and admissible even though it may have some tendency relevance if it is tendered to: Be background or context evidence, or prove relationship 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 Prove state of mind of another person: R v Fordhma Rebut evidence of good character: OGD Disprove coincidence: s 98
List of all cases	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

PROHIBITED PURPOSE

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

Other purposes

Evidence may be relevant and admissible even though it may have some tendency relevance if it is tendered to:

Be background or context evidence, or prove relationship
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
Prove state of mind of another person: R v Fordhma
Rebut evidence of good character: OGD
Disprove coincidence: s 98

List of all cases

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

	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: 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 Reveal a state of mind, and *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 of relationship	Show deteriorating marriage sometimes accompanied by violence and attempts to control complainant, allegations of affairs, separation, divorce, requests by appellant to revive 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...

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:

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
Reveal a state of mind, and
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 of relationship

Show deteriorating marriage sometimes accompanied by violence and attempts to control complainant, allegations of affairs, separation, divorce, requests by appellant to revive 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...

#8544 - Tendency And Coincidence - Litigation 2 - Evidence Law

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