Criminal Trial Courts Bench Book Update 65 published

[4-200] Tendency, coincidence and background evidence

Following the commencement of amendments on 1 July 2020 made by the Evidence Amendment (Tendency and Coincidence) Act 2020 (inserting ss 94(4), (5), and 97A, into the Evidence Act 1995, and amending s 101) and on 1 March 2021 by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (inserting s 161A into the Criminal Procedure Act 1986), commentary and suggested directions throughout the chapter have been updated. Section 161A provides, subject to the exception in s 161A(3), that a jury must not be directed that evidence adduced as tendency or coincidence evidence needs to be proved beyond reasonable doubt.

A suggested direction addressing the requirements of s 161A is at [4-227]. Considerations relevant to the timing of the direction are discussed at [4-226]. The commentary concerning tendency evidence in child sexual assault proceedings at [4-230] has been re-written following the enactment of s 97A. That section sets out rules for admissibility of tendency evidence in proceedings for child sexual assault.

The suggested direction at [4-232] Tendency evidence in a child sexual assault case has been removed.

Minor stylistic changes have been made to the suggested directions at [4-215], [4-222], [4-237] and [4-240].