Published by Geoff Harrison | 8 October 2023
Tendency or Coincidence evidence is simply another form of circumstantial evidence however, it has a higher threshold of admissibility given the potential for its prejudicial effect ie. Just because a person has behaved in a particular way in the past does not prove the prosecution's case. This type of evidence relates to either a person's previous conduct or their similarity to a particular conduct. A useful summary relating to the principles of admissibility is set out by Bell P, in Taylor v R (Below) at [122].
The notice requirements are set out in regulations 5 & 6 of the Evidence Regulation 2020 (below).
A major exception to the admissibility of Tendency Evidence is where the evidence is open to the possibility of concoction: Hoch v R.
Other Sources:
Public Defenders NSW Papers:
‘Turning the tables’: Defence tendency applications in criminal trials by Gabriel Chipkin
Cases:
Taylor v R [2020] NSWCCA 355 at [122]
Ngo v R [2023] NSWCCA 201 re anit-tendency at [105].
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Extracted Legislation:
EVIDENCE ACT 1995 - SECT 94
Application
(1) This Part does not apply to evidence that relates only to the credibility of a witness.
(2) This Part does not apply so far as a proceeding relates to bail or sentencing.
(3) This Part does not apply to evidence of--
(a) the character, reputation or conduct of a person, or
(b) a tendency that a person has or had,
if that character, reputation, conduct or tendency is a fact in issue.
(4) To avoid doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this Part to tendency evidence or coincidence evidence about a defendant.
(5) In determining the probative value of tendency evidence or coincidence evidence for the purposes of section 97(1)(b), 97A(4), 98(1)(b) or 101(2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.
EVIDENCE ACT 1995 - SECT 95
Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
EVIDENCE ACT 1995 - SECT 96
Failure to act
A reference in this Part to doing an act includes a reference to failing to do that act.
EVIDENCE ACT 1995 - SECT 97
The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible 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 unless--
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if--
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note : The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
EVIDENCE ACT 1995 - SECT 98
The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless--
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note : One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
(1A) To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(2) Subsection (1) (a) does not apply if--
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
Note : Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
EVIDENCE ACT 1995 - SECT 99
Requirements for notices
Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
EVIDENCE ACT 1995 - SECT 100
Court may dispense with notice requirements
(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.
(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98.
(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties.
(5) The direction--
(a) is subject to such conditions (if any) as the court thinks fit, and
(b) may be given either at or before the hearing.
(6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following--
(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party,
(b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence,
(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.
EVIDENCE ACT 1995 - SECT 101
Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
EVIDENCE REGULATION 2020 - REG 5
Notice of tendency evidence
(1) A notice given under section 97(1)(a) of the Act (a
"notice of tendency evidence" ) must be given in accordance with the requirements of this clause.
(2) A notice of tendency evidence must state--
(a) the substance of the evidence to which the notice relates, and
(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of--
(i) the date, time, place and circumstances at or in which the conduct occurred, and
(ii) the name of each person who saw, heard or otherwise perceived the conduct, and
(iii) in a civil proceeding--the address of each person so named, so far as it is known to the notifying party.
(3) On the application of a party in a criminal proceeding, the court may make an order directing a notifying party to disclose the address of any person named by that party in a notice of tendency evidence who saw, heard or otherwise perceived conduct or events referred to in the notice.
(4) The direction may be given on any terms that the court thinks fit.
EVIDENCE REGULATION 2020 - REG 6
Notice of coincidence evidence
(1) A notice given under section 98(1)(a) of the Act (a
"notice of coincidence evidence" ) must be given in accordance with the requirements of this clause.
(2) A notice of coincidence evidence must state--
(a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce, and
(b) particulars of--
(i) the date, time, place and circumstances at or in which each of those events occurred, and
(ii) the name of each person who saw, heard or otherwise perceived each of those events, and
(iii) in a civil proceeding--the address of each person so named, so far as it is known to the notifying party.
(3) On the application of a party in a criminal proceeding, the court may make an order directing a notifying party to disclose the address of any person named by that party in a notice of coincidence evidence who saw, heard or otherwise perceived conduct or events referred to in the notice.
(4) The direction may be given on any terms that the court thinks fit.
CRIMINAL PROCEDURE ACT 1986 - SECT 161A
Direction not to be given regarding tendency or coincidence evidence
(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.
(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.
(3) Subsection (1) does not apply if a court is satisfied--
(a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and
(b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.