This is an extract of our Tendency And Co Incidence document, which we sell as part of our Evidence and Criminal Procedure Notes collection written by the top tier of University Of Technology Sydney students.
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TENDENCY AND COINCIDENCE NOTE: If tendency evidence is admissible it cannot be used for anything else and likewise, if the evidence is already admitted it cannot be used to prove tendency (s95).
[Evidence] of past events including [insert past events] are likely to be used as tendency or coincidence evidence to show that because of these events the guilt of [defendant] is more likely. Tendency
[Prosecution] will argue that because of [defendant's] tendency to act in a certain way, [defendant]
has acted or thought in the same way in the matter that is at issue. Tendency is empirically the weakest form of evidence. For evidence of [tendency] to be admitted, it is must first be relevant (s55). Reasonable notice of the intention to adduce tendency evidence must be given (S 97(1)(a)). The evidence must also have 'significant probative value' (S 97(1)(b)). This is a lower threshold than 'substantial' (R v Lock; Lockyer). General business practice or tendency?
Where evidence is adduced to prove a business practice, it is arguable that the tendency rule (S 97) does not apply: Jacara v Perpetual Trustees; Cantarella Bros Pty Ltd v Andreasen Judicial Warnings - Tendency Tendency evidence may be prejudicial and may be subject to discretionary and mandatory exclusions (S 135137). Coincidence
[Prosecution] will argue that evidence of '2 or more events' when led to prove 'that a person did a particular act or had a particular state of mind on the basis that...it is improbable that the events occurred coincidentally. Balancing Act As the prosecution are tendering [evidence of...], it must be shown that the 'probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant' (S 101). In R v Ellis, Spiegelman CJ stated that S 101 does not require the Pfennig test, however it does not exclude its application. The statute only requires that the probative value significantly outweigh the prejudicial; not that there be NO other explanation of guilt. In considering the probative value the court will consider:
The time between the offences
The cogency of the evidence: Is proof of past behaviour clear and straightforward?
Strength of the inference: Is there a strong link between the act and innate characteristics making the act likely to be repeated?
Significance of the pattern: On how many occasions has the act occurred? In R v Ellis, the evidence related to 11 of the 13 charges.
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