#7505 - Tendency And Co Incidence - Evidence and Criminal Procedure

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 135-137).

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 similarities

• The difference

• 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.

R v Lock (1997) 91 A Crim R 356

Facts: Lock allegedly had stabbed her husband and was charged with his murder. She argued that she was defending herself and that, although the deceased had not physically assaulted her on the night in question, she knew from past experience that he was going to be violent and had therefore taken up a defensive position with a knife. To support a claim to self-defence the accused led extensive evidence of the deceased’s past violence, backed up by police records of attendances at her home and hospital and ambulance records of her admissions into hospital. After a trial which ended in a hung jury, the accused was retried and found not guilty of both manslaughter and murder. Although the basis for the jury decision is not clear there are indications that she was acquitted on the grounds of self-defence.

Issue: The central legal issue in Lock was the admissibility of evidence about past defensive efforts by the accused. The Crown sought to tender evidence of three instances where the accused had stabbed the deceased with a knife. If this was done there was a need for the jury to be very clear that the evidence can be used only to disprove the defence of self defence and to understand the nature of the relationship between the parties. It can not be used to show that just because she was violent to him in the past she murdered him not in self defence. The Crown unsuccessfully sought to tender this evidence on the basis that it showed that the accused had the tendency to deliberately stab the deceased when arguing with him. With three exceptions the Crown was successful in admitting this evidence on the basis that it showed the true nature of the relationship between the parties— that is that they had a relationship of mutual violence. The accused had failed to establish under s137 of the Evidence Act 1995 (Cth) that the probative value of the evidence was outweighed by the danger of unfair prejudice to her. It was held that the evidence was highly probative because it was relevant to rebut self-defence, which was opened to the jury by counsel for the accused as the significant issue in the case, one which in turn depended strongly upon the general relationship between the accused and the deceased. The true nature of that relationship was therefore of great importance in the case, and the probative value of this evidence upon the accused’s state of mind as to the necessity to do this act in self-defence was correspondingly high.

R v Li (2003) NSWCCA 407

The evidence need not demonstrate a tendency to commit a particular crime; the tendency rule applies in relation to evidence showing a tendency “to act in a particular way” — for example, to use violence with a person in order to achieve what is wanted

R v OGD (No 2) (2002) 50 NSWLR 433

Facts: This case involved evidence that was relevant for the tendency use but could not be used for that use. This is child sexual assault case where the accused and the victim are related. OGD was on trial for sexually assaulting his nephew over a period of five years. The crown called a different nephew to testify. That nephew testified that when he was 10 years old, OGD said to him that it was ok to do these things because he did them with his cousins. This evidence was admitted for an admission use. (exception to hearsay) It is a previous representation, It was adverse to OGD’s interests, Inculpating him in the criminal conduct. It did not prove that OGD did it, but rather it can be used as evidence. At trial OGD chose to testify himself. He chose to raise evidence of his own good character. He raised the evidence that he is a person of good character. Given the defendant raised good character evidence, the Crown was entitled to raise evidence of bad character. By doing this the crown was permitted to cross examine him and question him about sexual misconduct towards two other boys. One of who is the complainants brother and one of whom is unrelated. Both of these boys also testified at trial. The testimony of these boys was used to discredit the character of the accused thus was evidence tendered for the character use and rebut the evidence of good character. The appellant appealed on the basis that the evidence of the boys were tendered in a way which the jury thought it was permissible to use for the tendency use. He argued that even if he had committed these offences against the other boys the evidence could not be used to prove he committed the crime against the complainant. On appeal it was held that the trial judge did misdirect the jury

Jacara v Perpetual Trustees (2000) 106 FCR 51

Facts: Perpetual owned a shopping centre. It was alleged that one of Perpetuals agents was making representations to tenants who leased spaces in the centre. Jacara said that the agent made particular representations to them regarding their lease and particular aspects of it. Because Jacara had not no evidence of such representations, tenants from other shops in the shopping centre were called to testify that similar representations to them. It was submitted that the testimony of these other tenants could be evidence to show that the agent had a tendency to make representations to tenants and collective this pattern was a business practice. The testimony of the other tenants was admitted for the tendency use. Notice was given and it was held to have significant probative value

Held: “The probative value of the evidence as tendency evidence must depend upon the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to tendency … and the extent to which that tendency increases the likelihood that the fact in issue occurred.”

Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579

Facts: Dealt with a coffee contract. Andreasen only wanted to enter into a coffee contract with a company that gave them free umbrellas that did not break (as their previous umbrellas did). They entered into a contract with Toby Brothers asking for this however Toby Brothers said they could not afford to supply them with umbrellas. Andreasen then entered into a contract with Cantarella brothers because they did offer the free umbrellas. Canteralla brothers said this was never a part of the deal thus did not supply them with the umbrellas. They argued this was not their business practice. To rebut this presumption Andreasen had to...