Tendency evidence, sometimes called propensity or similar fact evidence, is super important in a bunch of criminal trials in NSW. This evidence tries to show that someone is likely to behave in a specific way or think a certain thought because of what they’ve done before. It’s vital to grasp how this type of evidence is allowed in court and what it means for those in legal battles. This info is really handy for lawyers and folks wrapped up in criminal cases.

In this comprehensive guide, we will explore the legal framework surrounding tendency evidence in NSW, focusing on the Evidence Act 1995 and key court decisions. We will delve into the conditions under which tendency evidence can be admitted, the significant probative value test, and the intersection with coincidence evidence. By the end of this article, readers will have a thorough understanding of how tendency evidence is used in criminal trials and its potential impact on the outcome of a case.

What is Tendency Evidence?

Tendency evidence refers to evidence that demonstrates a person has or had a tendency to act in a particular way or possess a particular state of mind. This type of evidence allows courts to consider past   or patterns that may be relevant to the current charges.

In NSW criminal trials, tendency evidence can be used to show that a person has previously engaged in similar conduct to what they are currently accused of. For example, evidence of prior domestic violence incidents may be admitted to support current domestic violence charges by demonstrating a pattern of behaviour.

For tendency evidence to be admissible in court, two key requirements must be met. First, reasonable notice must be given to the other party about the intention to use tendency evidence. This notice typically needs to be provided several months before the trial begins to be considered sufficient.

Second, the evidence must have significant probative value. This means it must be important or consequential enough to help prove an element of the current charges. When assessing probative value, courts consider factors like:

• The similarity between the past conduct and current allegations
• The number of prior incidents
• The timing and circumstances of the previous acts
• The strength of the evidence overall

The prosecution must also demonstrate that the probative value of tendency evidence outweighs any unfair prejudice it may cause to the defendant. This involves carefully balancing the evidence’s usefulness against the risk of the jury using it improperly or being unduly influenced by past conduct.

Recent changes to tendency evidence laws have impacted cases involving child sexual offences. Under section 97A of the Evidence Act 1995, evidence relating to a defendant’s sexual interest in children is now presumed to have significant probative value, making it more likely to be admitted in these types of cases.

Legislative Framework: NSW Evidence Act 1995

The admissibility of tendency evidence in NSW criminal trials is governed by the Evidence Act 1995, specifically sections 94 to 101. This legislative framework sets out the rules and conditions under which tendency evidence may be admitted in court proceedings.

The Evidence Act 1995 defines tendency evidence as evidence of a person’s character, reputation or conduct that shows they have a tendency to act in a particular way or have a particular state of mind. The Act also outlines the circumstances in which tendency evidence is admissible and the factors the court must consider when determining its probative value.

The Tendency Rule

Section 97 of the Evidence Act 1995, known as the tendency rule, stipulates the conditions that must be met for tendency evidence to be admissible in a criminal trial. The key requirements are:

1. Reasonable notice must be given to the other party of the intention to adduce the tendency evidence.
   
2. The court must consider that the evidence will have significant probative value. This means the evidence must be highly relevant and strongly support the facts in issue.
   

The court will assess the probative value of tendency evidence by considering factors such as the degree of similarity between the tendency evidence and the facts in issue, the number of occasions the tendency conduct occurred, and the time gap between the tendency conduct and the alleged offence.

The Coincidence Rule

Section 98 of the Evidence Act 1995 deals with the admissibility of coincidence evidence, which is closely related to tendency evidence. Coincidence evidence involves two or more events that are substantially and relevantly similar, and the similarities are unlikely to be a mere coincidence.

For coincidence evidence to be admissible under section 98, the same requirements as the tendency rule must be met – reasonable notice to the other party and the court’s assessment that the evidence has significant probative value.

The coincidence rule recognises that where there are striking similarities between two or more events, it may be possible to infer that a person had a tendency to act in a particular way or have a particular state of mind. This inference can be highly relevant in proving the facts in issue in a criminal trial.

Significant Probative Value Test

The significant probative value test is a crucial consideration when determining the admissibility of tendency evidence in NSW criminal trials. This test requires the court to assess whether the tendency evidence has sufficient probative value to justify its admission, taking into account factors such as the degree of similarity between the tendency evidence and the facts in issue.

In assessing the probative value of tendency evidence, the court will consider:

• The extent to which the evidence supports the existence of a tendency
• The degree to which the tendency makes more probable the facts that make up the elements of the offence charged
• The nature and extent of the similarity between the tendency evidence and the facts in issue

Generally, the more similar the conduct in the tendency evidence is to the conduct in question, the higher its probative value. However, the conduct does not need to be identical for the tendency evidence to be admissible. The key consideration is whether the tendency evidence, in combination with other evidence, makes the elements of the offence charged significantly more likely.

Other factors that may influence the assessment of probative value include:

• The number of occasions the conduct occurred
• The time gap between the tendency evidence and the offence charged
• The availability of other evidence to prove the facts in issue

It’s important to note that even if tendency evidence is found to have significant probative value, it may still be excluded if its probative value is outweighed by the danger of unfair prejudice to the defendant. This balancing exercise is a critical safeguard to ensure a fair trial.

Common Scenarios for Tendency Evidence

Tendency evidence frequently appears in cases involving sexual offences. The prosecution may seek to introduce evidence of an accused person’s prior sexual misconduct or interest in children to demonstrate a pattern of behaviour.

In child sexual offence cases, evidence relating to a defendant’s sexual interest in children is presumed to have significant probative value. This includes evidence about whether the defendant has acted on those interests.

Domestic violence cases may also involve tendency evidence. In Taylor v R [2020] NSWCCA 355, the prosecution relied on evidence of the accused’s prior domestic violence against intimate partners. The court found this evidence had significant probative value despite being from incidents that occurred nine years earlier.

A recent High Court case involving the murder of a two-and-a-half-year-old girl demonstrates how tendency evidence can be crucial in cases without direct evidence. The prosecution introduced evidence of prior incidents where the accused had harmed the child, including severe burns from a bathtub incident. The court found this tendency evidence was admissible as it helped identify the accused as the likely perpetrator.

The bathtub incident was particularly significant as forensic evidence showed the burns could only have occurred if the child was forcibly held in scalding water, contradicting the accused’s various explanations. This demonstrated a pattern of deliberately inflicting harm on the child.

Defending Against Tendency Evidence

When facing tendency evidence in a criminal trial, defendants can challenge its admissibility through several legal avenues. The prosecution must satisfy strict requirements before tendency evidence can be used against a defendant.

The first requirement is that reasonable notice must be given to the defence team before tendency evidence can be introduced. This notice should be provided several months before the trial commences to be considered sufficient.

The evidence must demonstrate significant probative value. Courts assess this by examining:

• The closeness between the tendency evidence and the facts at issue
• The number of prior acts being presented
• The general circumstances surrounding these acts
• The availability of other evidence

For tendency evidence to be admitted against a defendant, its probative value must outweigh any unfair prejudice it might cause. This involves a careful balancing act by the court to ensure the evidence won’t result in an unfair trial.

A key defence strategy involves challenging whether the tendency evidence has significant probative value. The more similar the prior behaviour is to the current charges, the more likely it will be considered probative. However, the conduct doesn’t need to be identical to satisfy this test.

The defence can argue that the evidence may be the result of collusion, concoction or contamination. While the court cannot consider these factors when determining probative value, they remain important issues for the jury to evaluate after hearing the evidence.

If tendency evidence is admitted, judges must provide clear directions to the jury about how this evidence can be used. These directions help ensure the evidence is only considered for its proper purpose and doesn’t unfairly prejudice the defendant’s right to a fair trial.

Intersection with Coincidence Evidence

Tendency evidence and coincidence evidence often work together in criminal trials to strengthen the prosecution’s case. Under the Evidence Act 1995, both types of evidence must meet similar requirements for admissibility, including having significant probative value and requiring reasonable notice to be given.

Coincidence evidence aims to prove that a person did a particular act or had a state of mind by showing that two or more events occurred in similar circumstances, making it improbable they happened by chance. When combined with tendency evidence, it can create a more comprehensive picture of an accused person’s behaviour patterns.

The Evidence Amendment (Tendency and Coincidence) Bill 2020 introduced changes affecting both types of evidence. In child sexual offence cases, evidence relating to the defendant’s sexual interest in children is now presumed to have significant probative value, whether presented as tendency or coincidence evidence.

Courts carefully assess the relationship between tendency and coincidence evidence. For example, in a case involving multiple similar allegations, tendency evidence might show a pattern of behaviour, while coincidence evidence demonstrates the unlikelihood of multiple complainants making false allegations independently.

The prosecution must establish that using both types of evidence together won’t create unfair prejudice against the defendant. The court weighs the combined probative value against the risk of prejudice, particularly when the evidence relates to uncharged acts or historical allegations.

Conclusion

Tendency evidence plays a vital role in NSW criminal trials, serving as a powerful tool for establishing patterns of behaviour and supporting the prosecution’s case. The legal framework surrounding tendency evidence, from the Evidence Act 1995 to recent amendments, provides clear guidelines for its admissibility while protecting defendants’ rights to a fair trial.

The use of tendency evidence requires careful consideration of its probative value, potential prejudicial effects, and compliance with procedural requirements. Recent changes have expanded its application in child sexual offence cases, reflecting evolving legal approaches to complex criminal matters. Understanding these principles helps legal practitioners and defendants navigate the intricacies of criminal proceedings where tendency evidence may significantly impact case outcomes.

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