Civil Trials Bench Book — Evidence

Relevant definitions The term “tendency evidence” is defined in the Dictionary to the Evidence Act. The definition does so by reference to the evidence to which s 97(1) refers — evidence “that a party seeks to have adduced for the purpose referred to” in s 97(1), which is to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind. The “tendency rule” is defined by the Dictionary as that contained in s 97(1).

The term “coincidence evidence” is similarly defined in the Dictionary by reference to the evidence to which the “coincidence rule” in s 98(1) refers — evidence “that a party seeks to have adduced for the purpose referred to” in s 98(1), which is to prove that, because of the improbability of two or more substantially and relevantly similar events occurring in substantially similar circumstances coincidentally, a person did a particular act or had a particular state of mind. The “coincidence rule” is defined by the Dictionary as that contained in s 98(1).

Both tendency evidence (previously called propensity evidence) and coincidence evidence (previously called similar fact evidence) may be described as evidence that:

from which evidence, a party seeks to have the tribunal of fact draw an inference this person also acted in that way or had that state of mind on the occasion in issue in the litigation. If that is the use to which the evidence is sought to be put, it is caught by, respectively, the tendency rule (see s 97 at [4-1140]) or the coincidence rule (see s 98 at [4-1150]).

Another definition in the Dictionary that is relevant to both the tendency rule and the coincidence rule, is that of “probative value” which, using the language of s 55 (Relevant evidence), means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Relevance of common law Because the tendency and coincidence rules are intended to cover the field previously occupied by the common law relating to propensity and similar fact evidence, it was at first thought to be permissible to turn for guidance to the common law decisions when applying Pt 3.6 of the Evidence Act; see, for example, R v Martin [2000] NSWCCA 332 at [59]. However, it has now been conclusively held that the statutory provisions in Pt 3.6 relating to these issues were intended to cover the relevant field to the exclusion of the common law principles previously applicable: R v Ellis (2003) 58 NSWLR 700 at [74]–[84] (a bench of five judges). When revoking the previous grant of special leave to appeal in that case, the High Court expressly agreed with the construction of the Evidence Act adopted by the Court of Criminal Appeal: Ellis v The Queen [2004] HCATrans 488 (a bench of seven judges). This case is discussed in relation to s 101 at [4-1180]. This view has now been confirmed in IMM v The Queen (2016) 257 CLR 300.

Part 3.6 is not concerned with evidence that relates only to the credibility of a witness. That issue is dealt with in Pt 3.7 (Credibility). Nor does it apply to evidence of the character, reputation or conduct of a person, or a tendency that person has or had, where that character, reputation, conduct or tendency is itself a fact in issue in the proceedings.

Whether facts relevant to a fact in issue (such as in a circumstantial evidence case) are themselves facts in issue was left undetermined by the High Court in Cornwell v The Queen (2007) 231 CLR 260 at [80].

Examples where such evidence is itself a fact in issue A person’s character may be raised as an issue in a criminal trial as demonstrating that he or she was unlikely to have committed the offence charged; this is dealt with under Pt 3.8 (Character). A person’s reputation is a fact in issue in an action for defamation; such evidence is not the same as character evidence to which s 110 applies, and Pt 3.2 (Hearsay) may be relevant to it. Conduct or tendency may be a fact in issue in a criminal trial where it is relied on by the Crown to establish that the accused had deliberately, rather than accidentally, harmed the complainant: see, for example, R v Joiner (2002) 133 A Crim R 90 (special leave to appeal refused: Joiner v The Queen [2003] HCATrans 278). In that case, three females with whom the accused had previously lived gave evidence of his violent reaction towards them in situations where there was either no or little provocation, and this evidence was permitted in order to establish that the injuries causing the death of the fourth female with whom he had lived were inflicted by him deliberately rather than in an accident as he had claimed. The criticism in R v Ellis, above, of the reliance of the judgment in Joiner on the pre-Evidence Act decision of Pfennig v The Queen (1995) 182 CLR 461 does not affect the relevance of s 94 to the facts of that case.

Note that s 94(2) provides that Pt 3.6 (Tendency and Coincidence) does not apply to proceedings relating to bail or sentencing.

Section 94 was amended by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (which affects hearings which commenced from 1 July 2020) to insert new subs (4) and (5), following recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Section 94(4) provides that any principle or rule of the common law or equity preventing or restricting the admissibility of tendency or coincidence evidence is not relevant when applying Pt 3.6.

Note, the amendments have currently been enacted in NSW only, although the Council of Attorneys-General has agreed to implement a Model Bill to amend the ss 97 and 101 tests. The Second Reading Speech makes clear that the provisions apply to a hearing that has commenced on or after that date. The reforms do not apply to or affect criminal proceedings that have already begun (Second Reading Speech, Legislative Assembly, Debates, p 1911).

New s 94(4) is consistent with the approach taken by the High Court in The Queen v Denis Bauer (a pseudonym) (2018) 266 CLR 56 at [70]. In a single judgment, the court said, “[a]t common law, there is a need for separate judicial consideration of the risk of contamination, concoction or collusion, and a requirement that evidence be excluded if there is a reasonable possibility of it being affected by contamination, concoction or collusion. That requirement exists because of the common law rule of exclusion that, because tendency evidence is inadmissible unless there is no reasonable view of it consistent with innocence, tendency evidence is not admissible if there is a realistic possibility of it being affected by contamination, concoction or collusion. Under the Evidence Act the position is different. The replacement of the Hoch test (Hoch v The Queen (1998) 165 CLR 292) with the less demanding s 97 criteria of significant probative value means that the common law rule of exclusion has no application. Under the Evidence Act, provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.”

Section 94(5) of the Act provides that in determining the probative value of tendency or coincidence evidence, the court must not have regard to the possibility the evidence may be the result of collusion, concoction or contamination. Previously, The Queen v Bauer at [69]–[70] had exempted from an exclusion of consideration of credibility and reliability a risk of contamination, concoction or collusion that is so great it would not be open to the jury rationally to accept the evidence. In the Second Reading Speech (Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1917), the Attorney General included: “Proposed section 94(5) … closes that small gap left open by the courts …”

Whether evidence of tendency is relevant for another purpose depends on whether or not proof of the tendency of the person in question to act in a particular way or to have a particular state of mind is a necessary link in the reasoning making the evidence relevant to a fact in issue. If it is such a necessary link, the tendency evidence is tendered for a tendency purpose, and the evidence is caught by the tendency rule in s 97: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at [65]–[67]. In that case, it was held that evidence of a system (of making particular representations), in the absence of evidence to the contrary, readily supports an inference that the system was implemented in the particular case, and therefore made it more likely that the fact in issue (the making of the representation) occurred, independently of the party’s tendency to act in that way; it was therefore admissible to prove that fact in issue. See also R v Cittadini (2008) 189 A Crim R 492 (discussed under s 97) and ACCC v 4WD Systems Pty Ltd [2003] FCA 850 at [49].

It would appear that the same test would be applicable in relation to coincidence evidence.

HML v The Queen In HML v The Queen (2008) 235 CLR 334, an appeal from Western Australia where the common law applies and not the Uniform Evidence Act, the High Court gave extensive, but unfortunately not always authoritative, consideration to:

These are all issues arising under s 95 (as distinct from under s 101).

Relevance At common law, where the transaction of which the crime charged in the proceedings formed an integral part could not be truly understood without other evidence that may well serve to explain it, that other evidence is admissible for that purpose: O’Leary v The King (1946) 73 CLR 566, at 577–578. That common law principle has not been abolished by the Evidence Act; indeed, it is maintained by s 9(1) of that Act: Adam v R (1999) 106 A Crim R 510 at [25]. (This was Richard Adam, the brother of the appellant Gilbert Adam in Adam v The Queen (2001) 207 CLR 96; the charges arose out of the same incident.)

Such evidence “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” (s 55): R v Adam, above, at [26]. It is not tendency evidence within Pt 3.6, as it would be tendered for non-tendency purpose: ibid at [27]. Such evidence, together with other evidence of conduct sufficiently proximate to the time of the crime charged as to permit an inference to be drawn that the defendant had the same continuing state of mind at that time, would be admissible, as it is not evidence of conduct by the defendant “in the past” (Makin v Attorney-General (NSW) [1894] AC 57 (PC) at 65), nor is it evidence of “disposition” or “propensity” or “inclination” (Markby v The Queen (1978) 140 CLR 108 at 116): R v Adam at [28]–[30]. If, however, such evidence is tendered for a tendency purpose or involves tendency reasoning, its use will be caught by s 97: R v Mostyn (2004) 145 A Crim R 304 at [116]–[118]. See also Context evidence, below.

In HML v The Queen, in which three appeals arising from sexual assault cases were heard together, it was held that other sexual conduct by the accused was admissible for the following non-tendency or coincidence purposes:

More recently, the NSW Court of Criminal Appeal revisited the circumstances in which tendency (and coincidence) evidence will be admissible in a criminal trial: Saoud v R (2014) 87 NSWLR 481. It also considered the extent to which “similarities” in conduct will be relevant to the analysis required by the statutory process in s 97 and the nature of the test for exclusions in s 101.

Similarly, other examples of “non-tendency” evidence to which character, reputation, conduct or tendency may be relevant, and of “non-coincidence” evidence, are usefully given by S Odgers, Uniform Evidence Law (13th edn) at [EA.97.240] They are:

See [4-1125] Context evidence below.

Effect of s 95 Odgers also makes the important point, at [EA.95.60], that the effect of s 95 is to take the opposite approach to that taken in Pt 3.2 in relation to hearsay evidence, where s 60 provides that evidence of a previous representation admitted for a non-hearsay purpose may establish the truth of that representation. The effect of s 95 is that:

that evidence must not be used by the tribunal of fact to establish that tendency or to adopt coincidence reasoning. An example relating to the defendant’s state of mind is R v Adam at [20]–[30], discussed in relation to the hearsay rule (s 59) in Pt 3.2.

Direction to be given Where tendency evidence has been admitted for a purpose other than to establish tendency, the judge should give a direction to the jury identifying the specific issue to which it is said to be relevant and to warn the jury, in stringent terms, that it is not to be used by them as demonstrating that the defendant is the sort of person who, having acted in the way (or had the state of mind) demonstrated in this evidence, acted in the same way (or had the same state of mind) as alleged against him in the instant case. Such a direction should be given as soon as the evidence has been given and again in the summing-up: R v Beserick (1993) 30 NSWLR 510 at 516; R v Greenham [1999] NSWCCA 8 at [28]–[29]; R v ATM [2000] NSWCCA 475 at [76]–[77]; R v Chan (2002) 131 A Crim R 66 at [50]. A judge hearing a civil case without a jury must also make it clear the use to which such evidence is being put in that case: Redpath v Hadid (2004) 41 MVR 382 at [43], [65]–[70].

The failure to give such a direction has led to a conviction being set aside even where the direction had not been sought at the trial, where there was a real risk that the jury would have used the evidence for the impermissible purpose: R v Cornelissen [2004] NSWCCA 449 at [72]–[74].

Evidence of a lie told by the accused to the police in relation to an issue quite discrete from the issues in a sexual assault case was held to have been wrongly left by the trial judge as supporting the Crown case that the accused had deceived the complainant into accepting his invitation to join him: R v Skaf [2004] NSWCCA 37 (reported on other issues at (2004) 60 NSWLR 86) at [159]–[164]).

State of mind In R v Walters [2002] NSWCCA 291, a case involving multiple charges of defrauding the Commonwealth of group tax payable by a number of companies of which the accused was the principal, and in which the issue of the accused’s intention was common to each charge, the trial judge commented that the accused’s accumulating knowledge and experience over the time to which the charges related made it logically more difficult for him to say that he did not understand what the situation was. It was argued on appeal that separate trials should have been ordered to avoid any tendency reasoning as to the accused’s state of mind, but it was held (at [48]–[50]) that the evidence in relation to the early counts was highly relevant and highly probative of the intention of the accused in relation to the later counts, and that a trial in which the Crown was deprived of the opportunity to rely on that evidence would have been unfair to the prosecution (on behalf of the community). Special leave to appeal was refused: Walters v The Queen [2002] HCATrans S277.

In sexual assault cases, evidence of the accused’s sexual interest or attraction for the complainant (previously described as “guilty passion”, a term derived from R v Beserick (1993) 30 NSWLR 510, for the complainant) may be admitted: R v AN (2000) 117 A Crim R 176 at [36]–[53]] ff. The Evidence Act does not specifically deal with evidence of this nature. Odgers observes that it will be necessary to identify with “some precision” what the tendering party proposes to establish by the evidence to avoid the application of s 97 (Odgers, 13th edn, [EA.97.60]).

The prosecution may lead evidence of the relationship between the complainant and the accused for the non-tendency purpose of placing the evidence of the specific act charged into its true and realistic context — in order to assist the jury to appreciate the full significance of what would appear to be an isolated act occurring without any apparent reason and to establish a sexual relationship that makes the complainant’s evidence of that specific act charged more likely to be true. In such a case, a direction must make it clear that such evidence may only be taken into account if the jury is satisfied that the conduct to which that evidence refers did take place, and that it may be put to that limited use only; it must not be used as establishing tendency: R v Hagerty (2004) 145 A Crim R 138 at [23]; Qualtieri v R, above, at [73]–[81], [123]; Rodden v R (2008) 182 A Crim R 227 at [123]–[125]; RG v R [2010] NSWCCA 173 at [38].

See also Johnson v The Queen (2018) 92 ALJR 1018 at [2], decided under s 34P, Evidence Act 1929, SA, which permits the admission of “discreditable conduct evidence” where its probative value outweighs its prejudicial effect on the accused. For non-Evidence Act cases, see BRS v The Queen (1997) 191 CLR 275 at 293–295, 301–302, 308, 326–328 and Gipp v The Queen (1998) 194 CLR 106 at [10], [77], [81], [142], [174] ff, which similarly require such directions to be given in relation to propensity and similar fact evidence — the common law concepts which tendency and coincidence evidence have replaced.

What was originally called “relationship” evidence should now be called “context evidence” in sexual assault cases: Qualtieri v R (2006) 171 A Crim R 463 at [80]–[81], [112]–[113], [124]; DJV v R (2008) 200 A Crim R 206 at [3].

The judge should avoid using the term “uncharged acts” in relation to evidence of this nature for whatever purpose it is being admitted: HML v The Queen (2008) 235 CLR 334 at [1], [129], [251], [399], [492]; KSC v R [2012] NSWCCA 179 at [64].

The tendency rule, which is the subject of s 97, refers to a person’s tendency “to act in a particular way, or to have a particular state of mind”. Similarly, the coincidence rule, which is the subject of s 98, refers to proof that a person “did a particular act or had a particular state of mind”. That is the context in which s 96 should be considered. It provides:

Section 96 does not, however, refer to the negative of having a particular state of mind, yet the presence or absence of foresight of the consequences of a person’s conduct (that is, the absence of a particular state of mind) may be relevant to prove that person committed an offence, and tendency or coincidence evidence could become relevant to that issue.

Anderson et al, The New Law of Evidence, 2009, LexisNexis Butterworths, Australia, notes the omission of any reference in the section to a negative state of mind, but draws no conclusions from that omission. Odgers, in Uniform Evidence Law (13th edn at [EA.96.60]), asserts that, despite the limited language of the section, “it is also intended that evidence of the absence of a particular state of mind … will be subject to this Part”. Section 96 is not the subject of any discussion in either of the reports of the Australian Law Reform Commission on Evidence (ALRC 26 and ALRC 38). There does not appear to have been any judicial consideration given to its terms.

Pt 3.6 covers the field The Court of Criminal Appeal (a bench of five judges) has held that Pt 3.6 prescribes a regime for tendency and coincidence evidence which lays down a set of principles to cover the field to the exclusion of common law principles previously applicable, and that s 101(2) (which provides further restrictions on tendency and coincidence evidence in criminal cases by precluding such evidence where its probative value does not substantially outweigh any prejudicial effect it may have) must be interpreted according to its terms: R v Ellis (2003) 58 NSWLR 700 at [72], [83]–[84], [90], [95]; the High Court has expressly agreed with that construction: Ellis v The Queen [2004] HCATrans 488.

Section 96 (which falls within the same Part of the Evidence Act as s 101), if similarly strictly interpreted only in accordance with its terms, would appear to leave an inexplicable omission in the otherwise clear intention for Pt 3.6 to cover the field. It is suggested that, until a binding decision is given in relation to s 96, some weight should be accorded to the participation of Mr Odgers in the Australian Law Reform Commission Evidence Reference (as a Senior Law Reform Officer) over almost the whole of the period the reference was before it, and to his view that, in its context, s 96 should be interpreted as including the absence of a particular state of mind.

Tendency evidence is tendered to prove (by inference) that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in that particular way (or had that particular state of mind): R v Cittadini (2008) 189 A Crim R 492 at [23], following Gardiner v R (2006) 162 A Crim R 233 at [124].

In Cittadini, it was held (at [26]–[35]) that, where the case of a party is that an injury occurred because of an inadequate and negligent supervision and quality control in the construction of an object, proof that the other party failed to institute an adequate and safe system of supervision and quality control in operation in relation to defects in the construction of that object other than the defect that caused the injury is admissible to ground an inference that such an inadequate and negligent system of supervision and quality control existed also in relation to the defect that did cause the injury. Such a case does not involve tendency reasoning, and the evidence in relation to the other defects is admissible for a use other than to prove a tendency to supervise or exercise quality control inadequately or negligently. The distinction is that such evidence is adduced in order to establish, by inference, the fact of the inadequate and negligent system, and not the tendency to have such a system.

Similarly, evidence that customers in a nightclub tended to take glasses on to the dance floor establishes a frequent, if not constant, danger created by the presence of the glass on the dance floor which should have alerted the owner of the nightclub to the need to consider whether precautions should have been taken to prevent injury to customers, and it is not tendency evidence: Caftor Pty Ltd t/as Mooseheads Bar & Cafe v Kook (2007) Aust Torts Reports 81-914 at [38].

Bauer v The Queen: admissibility of uncharged acts as tendency evidence 

In The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at [48] the High Court determined that a complainant’s evidence of an accused’s acts of sexual misconduct not charged on the indictment in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant, whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM (IMM v The Queen (2016) 257 CLR 300: see below under “significant probative value”) or exhibit a special, particular or unusual feature of the kind described in Hughes (Hughes v The Queen (2017) 263 CLR 338).

The juridical basis of cross-admissibility of evidence of charged acts and uncharged acts in cases where the conduct is not too far separated in time and the conduct is of a similar nature, rests on the “very high probative value” of that kind of evidence resulting from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, s/he will seek to gratify his or her sexual attraction by engaging in sexual acts of various kinds with that person: at [50]–[51], [60]; HML v The Queen (2008) 235 CLR 334 at [109]. The fact the evidence of uncharged acts is given by a complainant does not, of itself, mean it lacks significant probative value. Once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the offences: Bauer at [51].

The plurality’s reasoning in IMM was limited to the case under consideration. IMM should not be regarded as implying any departure from the majority opinions expressed in HML as to the high probative value which is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts for the purposes of s 97: at [52], [55].

The majority’s conclusion in Hughes, that particular features of offending imbued the subject tendency evidence with significant probative value, reflected the process of probability reasoning applying to cases involving multiple sexual offences and multiple complainants. The reference in IMM to “special features” of an alleged uncharged act with respect to a single complainant is a different process of reasoning: at [57]. In cases involving multiple complainants, where the question is whether evidence of a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that there must ordinarily be some feature of, or about, the offending linking the two together. If there is some common feature, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true: at [58]. By contrast, in a single complainant sexual offences case, there is ordinarily no need for a particular feature of the offending to render evidence of one offence significantly probative of the other: at [60].

The High Court set out at [86] the following directions which should ordinarily be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of “uncharged acts” as evidence the accused had a sexual interest in the complainant and a tendency to act upon it:

Trial judges should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt: Bauer at [86]. Contrary to the practice in NSW, trial judges in NSW should no longer follow DJV v The Queen (2008) 200 A Crim R 206 at [30]; FDP v R (2008) 74 NSWLR 645 at [38] and DJS v R [2010] NSWCCA 200 at [54]–[55].

Notice and significant probative value Where, however, evidence of the character, reputation or conduct of a person, or of a tendency that person has or had (whether or not because of that person’s character) is adduced in order to prove those matters, it is not admissible if (a) reasonable notice of an intention to adduce it has not been given, or (b) the court thinks that such evidence would not (either alone or having regard to other evidence adduced or to be adduced by the party by whom this evidence is tendered) have significant probative value. The section applies to both civil and criminal proceedings.

The three Law Reform Commissions, in their Reports (ALRC 102, NSWLR 112), gave consideration to the suggestions that s 97 goes either too far or not far enough in allowing this type of evidence, and acknowledged that such evidence can be highly prejudicial and productive of the very grave risk of wrongful conviction (par 11.15 et seq). They emphasised that the admission of such evidence was not simply to prove the relevant tendency; the admissibility of such evidence in all proceedings is allowed only where it satisfies s 97(1)(b) — that the judge is satisfied that the evidence, either by itself or having regard to other evidence, has significant probative value. In criminal proceedings, the judge must also be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect on the defendant: s 101. Moreover, all such evidence is subject to the discretionary and mandatory exclusions in Pt 3.11 (ss 135–139).

This emphasis has been effected by expressing those requirements as a condition of admissibility to be satisfied by the party tendering the evidence rather than as a basis for its exclusion. Section 135 is discussed later: see [4-1180].

Notice is not required where the evidence is adduced to explain or contradict tendency evidence adduced by another party (s 97(2)(b)), but the evidence must still have significant probative value in accordance with s 97(1)(b): Bective Station Pty Ltd v AWB (Australia) Ltd [2006] FCA 1596 at [85].

“if the court thinks” (s 97(1)(b)) There appears to have been no judicial consideration given to the degree of persuasion nominated by s 97(1)(b) — the evidence is not admissible unless the court “thinks” that the evidence “will” have significant probative value.

There is clearly a difference between “substantial” and “significant”, an issue discussed at Significant probative value, below. Odgers (13th edn [EA.55.390]) suggests that the onus of persuasion in relation to the probative value of the evidence remains on the party tendering it to persuade the court that “reasonable notice” has been given and the evidence has “significant probative value”. What is not so clear is the extent of the burden of that persuasion.

The open-textured nature of an enquiry into whether “the court thinks” that the probative value of the evidence is “significant” means it is inevitable that reasonable minds might reach different conclusions: Hughes v The Queen (2017) 263 CLR 338 at [42].

The phrase “if the court thinks” (or similar phrases) when used in relation to the exercise of a power may be found in a variety of settings. The Court of Criminal Appeal may, if it thinks fit, award such compensation as appears just to an appellant where the execution of its order quashing a conviction has been postponed on the Crown’s application and where the Crown has failed to prosecute a further appeal diligently: Criminal Appeal Act 1912, ss 24–25. The tribunal may allow a forensic patient to be absent from a mental health facility, correctional centre, detention centre or other place for a period and subject to any terms and conditions that the tribunal thinks fit: Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 94(1). The High Court may, at any stage in proceedings before it, make such amendment “as it thinks necessary” to correct any defect or error in the proceeding: Judiciary Act 1903 (Cth), s 77J(1). Any court before which proceedings are brought for the administration of a company’s affairs may make such order “as it thinks appropriate” as to how Pt 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to that particular company: s 447A. In each of those settings, the particular phrase appears to mean that the power may be exercised if the relevant court (or the Director-General) “considers it to be appropriate to do so”.

In its setting in s 97, however, the verb “thinks” is not used in relation to the exercise of a power; it is used in relation to the burden of persuasion for the admissibility of evidence. An accepted synonym for the verb “to think” is “to be of the opinion that”, but that phrase, too, does not indicate the burden of persuasion required. It is suggested that, until some binding decision is given in relation to the matter, s 97(1)(b) should be interpreted as requiring the judge to form the opinion that, on the balance of probabilities (in accordance with s 142), the evidence has significant probative value.

Significant probative value This is not defined in Pt 1 of the Dictionary, although “probative value” is defined as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The evidence must be of such a nature that it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent — that is, more than is required by s 55 to establish relevance — Hughes v The Queen (2017) 263 CLR 33 at [16]; McPhillamy v The Queen (2018) HCA 52 at [27]; Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at [72]–[73].

What is involved is, first, an assessment by the trial judge as to whether the evidence has the capacity rationally to affect the probability of the existence of the fact in issue (s 55) and, second, an assessment by the trial judge of the probative value that the jury might ascribe to the evidence (s 97). At a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility: IMM v The Queen (2016) 257 CLR 300 at [51]. The evidence will usually be tendered before the full picture can be seen. If that assessment is that the jury might ascribe to the evidence a significance of more than mere relevance although something less than substantial relevance, the tendency evidence is admissible, and that assessment will depend on the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact: R v Fletcher (2005) 156 A Crim R 308 at [33] (Special leave to appeal refused: Fletcher v The Queen [2006] HCATrans 127); R v Zhang (2005) 158 A Crim R 504 at [139] (Special leave to appeal refused: [2006] HCATrans 423; although the interpretation given to the section by the Court of Criminal Appeal was not necessarily endorsed). The evidence must be of importance or of consequence: R v Martin [2000] NSWCCA 332 at [67]; Jacara Pty Ltd v Perpetual Trustees WA Ltd, above, at [73]–[74]. Where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible: Hughes v The Queen at [40].

When determining the probative value of evidence under s 97(1)(b), no account should be taken of issues of credibility or reliability, except where those issues are such that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of a fact in issue: R v Shamouil (2006) 66 NSWLR 228 at [51]–[65]; Lodhi v R (2007) 179 A Crim R 470 at [174].

In Hughes v R (2015) 93 NSWLR 474, the CCA reiterated emphatically the approach to be taken in assessing whether tendency evidence should be admitted. Importantly, it reinforced that the NSW approach to the assessment of “probative value” remains fundamentally opposed to that taken in Victoria: see Dupas v R (2012) 218 A Crim R 507; see also Velkoski v R [2014] 45 VR 680.

The difference of opinion between the two jurisdictions was resolved by a majority of the High Court in IMM v The Queen (2016) 257 CLR 300. The view of the NSW Court of Criminal Appeal (NSWCCA) has prevailed. Questions of credibility are, generally speaking, matters for the jury not the judge. See further discussion at [4-1630] “Exclusion of prejudicial evidence in criminal proceedings — s 137”.

In Hughes v The Queen (2017) 263 CLR 338 the majority of the High Court approved the NSWCCA’s decision not to follow the Victorian Court of Appeal’s statements in Velkoski v R, above. The Victorian Court had stated at [3]:

The plurality in the High Court rejected this approach. First, it was not warranted by the language of s 97(1)(b). Secondly, it was redolent of the restoration of common law principles which had been abandoned in Pt 3.6. Thirdly, it did not match the language of the section which required a focus on whether the evidence displayed the defendant acting in a particular way, or having a particular state of mind. The test was, as stated in R v Ford (2010) 201 A Crim R 451 at [125], affirmed in Hughes at [40], whether the evidence, either by itself or together with other evidence adduced or to be adduced:

Where the tendency evidence relates to sexual misconduct with a person other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending linking the two together: McPhillamy v The Queen at [31]; Hughes v The Queen at [64]; The Queen v Bauer (a pseudonym) at [58].

In a criminal trial, s 101(2) imposes a further restriction on admissibility. Since 1 July 2020, the test in s 101(2) is whether the probative value of the evidence outweighs the danger of unfair prejudice — the word “substantially” was removed.

Evidence that does not qualify for admissibility to establish that a person has acted in a particular way or had a particular state of mind in relation to the offence charged under the tendency rule may still qualify for admissibility for that purpose under the coincidence rule: R v WRC (2002) 130 A Crim R 89 at [33].

Odgers, Uniform Evidence Law (13th edn at [EA.97.120]) has suggested that the assessment of the strength of the tendency inference will normally turn on such factors as:

No authority is cited for the last suggested factor. It should be noted that the degree of similarity referred to in points 5 and 6 need not reach the level required for coincidence evidence: KJR v R (2007) 173 A Crim R 226 at [51]–[54].

As well as an assessment of the strength of the tendency inference, the extent to which the tendency makes more likely the elements of the offence charged must also be assessed. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant: Hughes v The Queen at [64]. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged: Hughes v The Queen at [41].

General 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 or think in a particular way” — for example, to use violence with a person in order to achieve what is wanted: R v Li [2003] NSWCCA 407 at [11].

Other bases on which judges have determined that tendency evidence has significant probative value include a pattern of behaviour, even a modus operandi, in the behaviour of the accused in establishing a relationship with the complainants, or the similarity in the particular surrounding circumstances in which the offences occurred, rather than the specific sexual behaviour in which the accused engaged with each of them: R v Milton at [31]; R v Harker [2004] NSWCCA 427 at [51]; R v Fletcher at [67]; R v Smith (2008) 190 A Crim R 8 at [13]–[19]. However, for evidence to be admissible as tendency under s 97(1)(b) it is not necessary that it exhibits an “underlying unity”, “a modus operandi” or a “pattern of conduct”: Hughes v The Queen at [34] approving the approach in R v Ford (2009) 201 A Crim R 451, R v PWD (2010) 205 A Crim R 75, Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682.

An example of tendency evidence held to be admissible, notwithstanding that it involved a very long time frame is R v Cakovski (2004) 149 A Crim R 21, discussed in [4-1610] Discretions to exclude evidence (s 135), under “Unfair prejudice”.

BC v R [2015] NSWCCA 327 is another decision which shows the reach of tendency evidence. The applicant (seeking relief under Criminal Appeal Act s 5F) was charged with 20 counts of sexual assault involving four complainants. These were alleged to have been committed over many years, the applicant being between 11 and 13 years old at the beginning of the assaults and being 28 at the last of them. The applicant sought separate trials. This was opposed by the Crown on the basis that the totality of the evidence was admissible on each count because of its intention to rely on the tendency rule. The trial judge refused to sever the counts in the indictment and refused separate trials. The majority (Beech-Jones J and Simpson JA) dismissed the application.

Beech-Jones J held that in some cases it is not improper, and thus not prejudicial, for a jury to reason that if the accused is a particular “sort of person” (namely a person who has demonstrated the asserted tendency), then he is more likely to have committed the alleged offence. At [81] his Honour held:

The risk that the jury would be “emotionally affected” can be accommodated by suitable directions.

Adams J did not agree. He held that the behaviour of the applicant when he was 11 could not throw any light on his behaviour as an adult. Second, he held that the jury’s reaction to the totality of the evidence would be so extreme that directions would not eliminate the prejudice.

See also Aravena v R (2015) 91 NSWLR 258, where the NSWCCA observed that it was not necessary that the conduct occur on a number of occasions for evidence to be admitted as tendency evidence. Even a single incident, in a particular case, may be significant.

The processes by which the tender of tendency evidence is to be determined have been described as follows:

The judge is required, first, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; and second (if that determination is affirmative) to evaluate, in the light of any evidence already adduced and evidence that is anticipated, the likelihood that the jury would assign the evidence significant probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 97 mandates that the evidence is not to be admitted: R v Fletcher at [32]–[35] (Special leave to appeal refused; Fletcher v The Queen [2006] HCATrans 127); R v Zhang (2005) 158 A Crim R 504 at [139] (Special leave to appeal refused: [2006] HCATrans 423).

In McPhillamy v The Queen (2018) 92 ALJR 1045, the High Court held that the tendency evidence did not meet the threshold requirement of s 97(1)(b). While proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, it was not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual assault cases its probative value. The tendency evidence in this case was confined to evidence of events in 1985: at [27]. In the absence of evidence the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade before the alleged offending against A, the inference that at the dates of the offences against B and C he possessed the tendency is weak: at [27], [30]; R v Cox [2007] EWCA Crim 3365 distinguished

An illustration of the need for care to be taken in the use of tendency evidence in civil proceedings is the decision of the NSW Court of Appeal in White v Johnston (2015) NSWLR 779. The respondent, who succeeded at first instance, had sued for damages for assault and battery against a dentist. Her case was that there had been no therapeutic purpose in the performance of the work with the consequence that her consent to the dental procedures had been invalidly given. An important part of her case was the tender of evidence showing that the appellant had fraudulently obtained payments from health authorities for services never rendered. This evidence was admitted by the primary judge on the basis that it was relevant to an unpleaded case that the appellant had a tendency to perform work that was unnecessary, and to make claims for services not rendered. The Court of Appeal held that the evidence of previous malpractice had been wrongly admitted. This was because it lacked significant probative value for the different purpose of establishing that none of the work carried out on the appellant had a therapeutic purpose. The tendency evidence showed that the respondent had in the past charged for work he had not done. Here, he had done a significant amount of work, but the issue was whether it was for a therapeutic purpose. The evidence did not address this issue in a significant way. The appeal was allowed and sent back for retrial (confined to the issues of negligence).

Circumstantial evidence In Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51, it was suggested (at [56]–[57]) that, although there is no requirement that circumstantial evidence tendered to establish any particular fact comply with s 97, where such evidence is tendered so as to enable a conclusion to be drawn that a person had a tendency to act or to think in a particular way, s 97 will apply.

Royal Commission recommendations: Substantial amendments were made to Pt 3.6 of the Evidence Act in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report, 2017, and in particular recommendations 44 to 51. The amendments are intended to facilitate greater admissibility of tendency and coincidence evidence, particularly in criminal proceedings for child sexual offences. The amendments create two classes of defendants with different regimes: one for criminal proceedings for non-child sex offences (s 97), and the other for those charged with child sex offences (s 97A).

Section 97A: This creates a presumption in favour of the admissibility of tendency evidence about a sexual interest in children that the defendant has or had, or has or had acted on, in proceedings in which the commission of a child sexual offence (defined in s 97A(6)) is in issue. The court may rule against the presumption “if it is satisfied that there are sufficient grounds to do so”: s 97A(4), but a wide range of matters are deemed to be irrelevant to that consideration by s 97A(5).

“Sufficient grounds”: This phrase in s 97A(4) is not defined, but the Second Reading Speech says that “sufficient grounds” should be considered in light of the objective of the amendments to facilitate greater admissibility in child sexual offence cases (NSW, Legislative Assembly, Debates, 4 February 2020, p 1915). As to “exceptional circumstances” found in s 97A(5), the Second Reading Speech says these are meant to be a “high bar”, but the expression was inserted in recognition that there may be rare circumstances.

Subsections 97A(5)(a)–(g) were included in the Royal Commission’s recommendations. The Second Reading Speech refers to these matters as “myths and misconceptions”, which are directed to raising judicial awareness of the findings of the Royal Commission.

Section 161A, Criminal Procedure Act 1986 provides that a jury must not be directed that evidence adduced as tendency or coincidence evidence needs to be proved beyond reasonable doubt (s 161A(1)). However the judge may direct on the standard of proof where there is a significant possibility the jury will rely upon the evidence as essential to its reasoning in reaching a finding of guilt (s 161A(3)). Further, if the evidence is also adduced as an element or essential fact of a charge, a jury may be directed the evidence needs to be proved beyond reasonable doubt.

Section 161A commenced 1 March 2021. The section was enacted to respond to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in its 2017 Criminal Justice Report (Pts III–VI, pp 409 and ff). The enactment of s 161A complements amendments to the Evidence Act 1995 described above: the amendments to s 94 and insertion of s 97A.

See further P Mizzi and RA Hulme, “Reforming the admissibility of tendency and coincidence evidence in criminal trials” (2020) 32 JOB 113 and Criminal Trial Courts Bench Book at [4-200].

This rule relates to evidence of two or more substantially and relevantly similar events occurring in substantially similar circumstances. Such evidence is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind, unless:

The section applies to both civil and criminal proceedings.

The amendments made by the Evidence Amendment Act to s 98 were to remove the previous dual requirements that the “related acts” must be substantially and relevantly similar and that the circumstances in which they occurred are substantially similar, and to make them admissible if one or the other condition is fulfilled. The intention of the Law Reform Commissions was that s 98 will apply where the party tendering the evidence argues that it is relevant to the issues in the case on the basis of improbability reasoning and where that reasoning turns on the similarities between the events or in the circumstances surrounding those events, or both (ALRC 102, NSWLRC 112, par 11.25).

In relation to criminal proceedings, new subs 1A, inserted by the Evidence Amendment (Tendency and Coincidence) Act 2020, clarifies the position, (“to avoid doubt”), that s 98(1) applies to the evidence of two or more witnesses claiming to be victims of offences committed by the defendant to prove, on the basis of similarities in the acts or circumstances, that the defendant did an act in issue in the proceeding. The basis for the perceived lack of clarity surrounding this issue is not clear from the explanatory material or the Second Reading Speech (at p 1917), where the Attorney-General said that this is consistent with the current position in NSW.

If reasonable notice of the intention to adduce the evidence has been given in civil proceedings, and if the court thinks that the evidence does have significant probative value, the evidence is admissible and it may be used to establish the relevant similarities of the conduct or state of mind involved, subject to its discretionary exclusion pursuant to s 135. In criminal proceedings, before such evidence may be used for that purpose, the court must also be satisfied that the probative value of the coincidence evidence substantially outweighs any prejudicial effect it may have on the defendant: s 101. That section is discussed later: see [4-1180].

The assessment as to whether the two or more events were substantially similar and whether they occurred in substantially similar circumstances is to be made by the judge, and it is essentially an evaluative and predictive one; the first issue is whether the evidence is relevant (s 55): R v Zhang (2005) 158 A Crim R 504 at [139]–[140] (Special leave to appeal refused: [2006] HCATrans 423; although the interpretation given to the section was not necessarily endorsed); Stevens v R [2007] NSWCCA 252 at [46]–[50].

In R v Zhang, the appellant had been convicted of attempting to import prohibited drugs found in packets purporting to contain food and addressed to her foodstuff importing business, and of possession of prohibited drugs in a package inside a bag in her apartment which she claimed she had been asked to mind. The only issue in the trial was whether she was aware that the packets attempted to be imported and the package inside her apartment contained prohibited drugs. The Crown sought to establish that fact by the improbability of the coincidental presence, on two occasions and close in time, of large quantities of prohibited drugs without her knowledge. The Crown had argued that the appellant’s knowledge that the container on one occasion contained prohibited drugs strengthened its case that she knew that the container on the other occasion also contained prohibited drugs.

As the evidence relating to each occasion was admissible in any event to prove the charge relating to that occasion, this was coincidence reasoning rather than coincidence evidence (see [137]). The issues for the trial judge to consider were whether:

The issue for the jury was, in the end, whether the Crown had eliminated the reasonable possibility that the drugs had come into the appellant’s possession without her knowledge (at [151]). In a dissenting judgment, Basten JA held (at [63]) that, whereas knowledge by the appellant of the prohibited drugs inside the bag in her apartment may have given rise to a powerful inference that she was knowingly involved in the importation, the reverse did not apply, and that in any case the events were not related within the meaning of s 98 (at [64]).

“unless the court thinks” It is suggested that — for the reasons given under the identical sub-heading under The tendency rule (s 97) — that, until some binding decision is given in relation to the matter, s 98(1)(b) should be interpreted as requiring the judge to form the opinion that, on the balance of probabilities (in accordance with s 142), the evidence has significant probative value.

In an application for there to be separate trials of charges involving the coincidence rule, only the trial judge can make rulings as to the admissibility of coincidence evidence, so that an application heard before a joint trial by a judge who is not to be the trial judge, and who cannot rule on the admissibility of that evidence, can proceed only on the admissibility of the coincidence evidence in a separate trial; if the assessment is that such evidence would render that trial unfair, then separate trials should be ordered: R v Nassif [2004] NSWCCA 433 at [36]–[41].

Significant probative value The judge must assess whether the evidence has the capacity rationally to affect the probability of the existence of the fact in issue (s 55). If the assessment is that the jury might ascribe to the evidence a significance of more than mere relevance, although something less than substantial relevance, the coincidence evidence is admissible. This is discussed under the identical subheading under [4-1140] (The tendency rule).

Such matters as the striking similarities, underlying unity, system or pattern may guide the reasoning process in the evaluation of whether tendered evidence is capable of having, or would have, significant probative value: R v Fletcher (2005) 156 A Crim R 308 at [33], [60] (Special leave to appeal refused: Fletcher v The Queen [2006] HCATrans 127). Those phrases are taken from the common law case of Hoch v The Queen (1989) 165 CLR 292 at 294–295. See also Harriman v The Queen (1989) 167 CLR 590 at 600, 609.

The issue Although each of a number of similar features involved in more than one event might be explained away as not being uncommon, the issue must be whether the combination of all those similar features in each event is sufficiently striking as to give them significant probative value: R v Mason (2003) 140 A Crim R 274 at [40].

Examples In R v Milenkovic (2005) 158 A Crim R 4, the accused was charged with the armed robbery of a Westpac Bank, and the Crown sought to tender evidence that he was shortly afterwards involved in another armed robbery of a Westpac Bank in which the men involved were similarly wearing dark clothing including hoods or balaclavas, armed with a shotgun and carrying sledgehammers and driving in a stolen motor vehicle. In the second armed robbery, DNA attributed to the accused was found on a wrench in the vehicle stolen for the second armed robbery. In each robbery, the men had a changeover vehicle waiting for them that was owned by the father of one of the other men involved. The trial judge had dismissed the similarities as being “really stock in trade” of armed robbers, but made no reference to the fact that the same vehicle was to be used as a changeover vehicle. The Court of Criminal Appeal dismissed the Crown appeal against the rejection of this evidence (at [21]–[23]) on the basis that, although the common changeover vehicle gave the fact that the accused had been involved in the second armed robbery “some” probative value, it did not give that evidence “significant” probative value.

In Boniface v SMEC Holdings Ltd [2006] NSWCA 351, Hodgson JA held (at [12]) that, in a civil case, the requirement of “significant probative value” probably did not change the general law that conclusions of fact based on similarities of events be reached by way of reasonable inference and not mere speculation. There is no support for that conclusion in the other judgments of the Court of Appeal; nor is there any record of a decision that has adopted the interpretation given. Mere speculation would not establish that the evidence was relevant in accordance with s 55, which requires the evidence to be capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of the fact in issue. That would appear to require the evidence to give rise to a reasonable inference in order to be relevant. Significant probative value requires more than mere relevance although something less than substantial relevance. See the discussion at [4-1140] (the tendency rule).

In R v Zhang (2005) 158 A Crim R 504 it was held by majority (at [145]–[148]) that the evidence relating to each event in question was capable of supporting the significant probative value of the evidence relating to the other event, although it was conceded that such evidence was peripheral where the remaining issue was the accused’s knowledge that the substance in each case was a narcotic. The dissenting judgment pointed out (at [70]) that such a direction in relation to significant probative value would only be appropriate where the jury was not in doubt in relation to the evidence relating to both events. (It is unclear whether this was one of the interpretations which was not necessarily endorsed by the refusal of special leave to appeal by the High Court.)

Determination of the issue In R v Zhang (2005) 158 A Crim R 504, the processes by which the tender of coincidence evidence is to be determined have been described (at [139]–[140]) as follows:

The judge is required, first, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; and secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced and evidence that is anticipated, the likelihood that the jury would assign the evidence significant probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.

A determination under s 98 is essentially evaluative and predictive, and requires an assessment on which reasonable minds may differ: Zhang at [141]; Samadi v R (2008) 192 A Crim R 251 at [68].

In DSJ v R (2012) 215 A Crim R 349, a five-judge bench of the Court of Appeal has recently considered a challenge to the formulation of the approach stated by Simpson, J relating to the admissibility of coincidence evidence. (In Zhang v R [2011] NSWCCA 233, Simpson J and Buddin J had been in agreement as to the correct approach. Basten JA did not agree.) There were two principal questions of challenge. First, whether Simpson J’s approach in Zhang, above, had abrogated the proper function of the trial judge. Second, whether the exercise required by s 98 required the trial judge to assess the respective probabilities arising from any alternative theories available in the evidence and the likely evidence to be adduced. A corollary of this second question was the proposition that the trial judge, in determining to allow the coincidence evidence and in ordering a joint trial, disregarded the possibility of an alternate explanation for the evidence, consistent with innocence.

The facts were briefly these: the two accused had been charged with insider trading offences under the Corporations Act 2001 (Cth). Essentially DSJ was alleged to be an insider. He had procured NS, his co-accused, to apply for and dispose of shares or securities by passing insider information to him. Shares and securities were purchased and sold over a relatively long period of time. According to the Crown case, there was a powerful inference to suggest that there was a deliberate scheme or arrangement in place between the two men. The trial judge, in a pre-trial ruling, held that the coincidence evidence was admissible pursuant to s 98(1)(b), ie it had significant probative value; and that there should be a joint trial of the majority of counts in the indictment.

The court held—Whealy JA with Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J in agreement that:

Examples of the practical application of these principles are to be found in Bangaru v R [2012] NSWCCA 204 (tendency evidence) and R v Gale (2012) 217 A Crim R 487 (co-incidence evidence).

In R v Matonwal (2016) 94 NSWLR 1, two men (the respondents) had been arrested during the commission of an armed robbery at a service station. At their trial, the Crown sought to introduce tendency and coincidence evidence in relation to a series of other armed robberies in the Sydney region. The coincidence evidence was based on features of the robberies relating to the weapons used, the clothing worn, and description of the offenders, escape vehicle and general modus operandi. It was argued that these features were sufficiently similar such that it was improbable that robberies with those features were committed by persons other than the respondents. The trial judge refused to admit the evidence as either tendency or coincidence evidence on the basis that each of the features pointed to were “common features of robberies of that type”. The Court of Criminal Appeal agreed that the tendency evidence was insufficient but held that the trial judge was in error in rejecting the majority of the evidence as sufficient coincidence evidence. The court held that it is necessary to give consideration to evidence sought to be tendered as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon. Secondly, the task is to be performed having regard to all the evidence sought to be relied upon by the party seeking to tender coincidence evidence.

The Evidence Regulation 2020 (NSW), clauses 5 and 6, requires a s 97 notice in relation to tendency evidence and a s 98 notice in relation to coincidence evidence:

The notice required by the section must identify each event which is to be the subject of evidence, and the person whose conduct or state of mind will be the subject of that evidence, and it must state whether the evidence is tendered to prove that that person did a particular act (identifying that act) or had a particular state of mind (identifying that state of mind): R v Zhang [2005] NNSWCCA 437 at [131]. The notice may comply with those obligations by reference to other readily identifiable documents: R v AB [2001] NSWCCA 496 at [15].

A general reference to the “brief of evidence and evidence at committal” is not sufficient notice, and the absence of complaint at the trial is not itself evidence of a waiver of the requirements unless it is demonstrated that the accused had been apprised of his rights and had been advised by his legal representative to waive those rights, and that the accused understood the consequences of consenting to the evidence being given without notice; the provisions of the regulation are mandatory, and failure to comply with its terms renders the evidence inadmissible: R v AN [2000] 1NSWCCA 372 at [60]–[62]; R v Zhang at [49].

There may be no unfairness created where appropriate particulars have been given by way of a tendency notice rather than a coincidence notice: R v Teys (2001) 119 A Crim R 398 at [66].

Section 192 (Leave, permission or direction may be given on terms) identifies a number of factors to be taken into account in an application under s 99, without limiting such matters: R v Harker [2004] NSWCCA 427 at [34]. Other important matters relevant to the making of a direction are the probative value of the evidence and the prejudice caused by the failure to give notice: at [35]. Such prejudice is limited to that caused by the failure to give notice, such as not being in a position to meet the evidence; prejudice caused to the defendant by the admission of such evidence is irrelevant to s 100: at [41], [44]–[47]. The length of time that had elapsed since the events with which the evidence is concerned is not prejudice caused by the failure of the Crown to give a s 100 notice, as it would have arisen in any event: at [44].

Affidavits served during the proceedings are relevant in considering whether the other party had been put on notice of the tendency evidence on which reliance was to be placed and thus whether the lack of a formal notice should be waived in accordance with s 192 of the Evidence Act: Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 at [19]; Toben v Jones (2003) 129 FCR 515 at [168].

A direction that either the tendency rule or the coincidence rule not apply to particular evidence would be made where the other party does not claim prejudice: R v Davidson [2000] NSWSC 197 at [2]. A refusal to make a direction pursuant to s 100 is a “decision … on the admissibility of evidence”, and thus within the scope of s 5F(3A) of the Criminal Appeal Act 1912: R v Harker, above, at [30]–[32].

A direction has been given where cross-examination of a Crown witness on behalf of the accused was based on material served on the accused by the Crown: R v Christos Podaras [2009] NSWDC 276.

A direction given pursuant to s 100 does not mean that the evidence is admissible, as s 101 (Further restrictions on tendency evidence and coincidence evidence adduced by prosecution) remains to be considered: R v Harker at [35], [46].

Terminology Prior to the 2020 amendments made by the Evidence Amendment (Tendency and Coincidence) Act, s 101(2) was expressed in unusual terms, in that it states that tendency or coincidence evidence about the defendant “that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” (emphasis added). The word “adduced” does not mean “admitted”; in its context, it means “tendered”: R v Zhang (2005) 158 A Crim R 504 at [38]–[39], [125].

The new s 101(2) appears to reduce the heavy burden on the prosecution in the former s 101(2): see Taylor v R [2020] NSWCCA 355 at [122]. The amendment replaces the words “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” with “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”. The Second Reading Speech (p 1916) says that this removes the requirement for the probative value to “substantially” outweigh the prejudicial effect, and is intended to “address the asymmetry in the assessment of whether evidence with significant probative value should be admissible under the current test, which is disproportionately weighted toward the exclusion of such evidence”.

The amendment appears to increase the minimum consideration of prejudice from “any prejudicial effect” to “the danger of unfair prejudice”. The intention is to align the language of s 101 with s 137 (which also uses “danger of unfair prejudice”) in circumstances in which the High Court has held that the expressions of “prejudicial effect” and “unfair prejudice” convey essentially the same idea: see The Queen v Dennis Bauer (a pseudonym) at [73]. There the High Court said “despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. Nonetheless it may be that the change from “any” to “danger of” will be thought to increase the demonstrable prejudice necessary to outweigh the probative value.

Both the tendency rule in s 97 and the coincidence rule in s 98 states that such evidence “is not admissible to prove” either the tendency or the coincidence, whereas s 95 (Use of evidence for other purposes) excludes a particular use of evidence already admitted. In R v Nassif [2004] NSWCCA 433, it was held (at [47]) that unproductive debate concerning the non-exclusionary terminology of s 101 should be put to one side, and that it should be construed as a rule with respect to admissibility. See also R v Fletcher (2005) 156 A Crim R 308 at [46]–[48], discussed more fully under Appellate approach below.

Interpretation In R v Ellis (2003) 58 NSWLR 700 at [74]–[84], [90]–[95], the Court of Criminal Appeal (a bench of five judges) held conclusively that the statutory provisions and the common law relating to the issues arising under Pt 3.6 (in which s 101 is found) are not necessarily the same and that s 101 must be interpreted strictly in accordance with its terms. When revoking the previous grant of special leave to appeal in that case, the High Court expressly agreed with the construction of the Evidence Act adopted by the Court of Criminal Appeal: Ellis v The Queen [2004] HCATrans 488 (a bench of seven judges).

In particular, the Court of Criminal Appeal held that the common law requirement — that, before this type of circumstantial evidence could be admitted, there must be no rational explanation for the evidence other than the guilt of the accused (Pfennig v The Queen (1995) 182 CLR 461 at 482–483) — leaves nothing to be weighed under s 101, whereas the statutory requirement that the probative value of the evidence substantially outweighs any prejudicial effect on the accused permits evidence to be admitted in the appropriate case despite that prejudicial effect. It was nevertheless said that there may be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighed its prejudicial effect unless the “no rational explanation” test was satisfied.

Previous decisions such as R v Colby [1999] NSWCCA 261 at [92], [97]; R v OGD (No 2) (2000) 50 NSWLR 433 at [77] should now be regarded as having been overruled in relation to this particular issue, but they remain of assistance in relation to the continuing relevance of the possibility of concoction: see Possibility of concoction below.

In HML v The Queen (2008) 235 CLR 334, Heydon J held (at [228], fn 227) that Pfennig v The Queen, above, “does not apply” under the Evidence Act.

The judicial process Where tendency evidence is tendered, the judicial process involves:

After the application of ss 97 and 101 to tendency evidence, there is no room for the operation of either ss 135 or 137: R v Ngatikaura (2006) 161 A Crim R 329 at [70]–[71], [74] (although Rothman J, having agreed with Simpson J, goes on to tread a slightly different path to that followed by Simpson J; Beazley J dissented only on the basis that the evidence was not tendency evidence). Subsequent decisions, such as R v Ford (2010) 201 A Crim R 451 at [59], have made it clear (in accordance with the view expressed by Simpson J in Ngatikaura) that, once evidence has passed the test imposed by s 101(2), it was not possible to think of circumstances in which the evidence could be rejected pursuant to s 137.

Significance should not be given to minor variations of the language used in s 101 (“the probative value of the evidence substantially outweighs any prejudicial effect it may have”) on the one hand and “unfairly prejudicial to a party” in s 135 and “the danger of unfair prejudice to the defendant” in s 137 on the other hand; what is to be compared in the case of all three sections is “probative value” and “prejudicial effect”, and prejudicial effect will generally be unfair if it outweighs probative value: R v Chan (2002) 131 A Crim R 66 at [49].

Possibility of concoction The ruling in Pfennig v The Queen was based on what was said in Hoch v The Queen (1988) 165 CLR 292 at 296, where that proposition was itself based on the acceptance that the possibility of concoction (not a probability or real chance of concoction) between different witnesses of “similar fact” evidence served to render that evidence inadmissible. The test was stated (at 297) as “the admissibility of similar fact evidence … depends on that evidence having the quality [of probative value] that is not reasonably explicable on the basis of concoction”.

Although Pfennig is not applicable to s 101, the possibility of joint concoction has been held to be nevertheless still relevant to the assessment of the probative value of the evidence: AE v R [2008] NSWCCA 52 at [44]. There is no discussion in that case as to how it remains relevant, but no suggestion is made that the “no rational view” reasoning remains appropriate. In R v Harker [2004] NSWCCA 427 at [50]–[51], the absence of any opportunity for the complainant and the proposed witness to give propensity evidence of concocting their versions of events together was taken into account in the assessment of the probative value of the evidence to be given by the proposed witness, without reference to the “no rational view” reasoning.

The possibility of concoction has also been considered relevant in three Tasmanian decisions based on that State’s Evidence Act 2001 (in which s 101(2) is expressed in the same terms as in the NSW statute), where the views expressed in R v Ellis concerning the “no rational view” were accepted. In Tasmania v S [2004] TASSC 84, Underwood J said (at [8]) that the potential untruthfulness of tendency evidence is relevant to the probative force of tendency evidence, and he followed the pre-Ellis case of R v Colby, above, to state (at [11]) that, where there is a reasonable possibility of concoction, then the prejudicial effect will “ordinarily” outweigh the probative value of the tendency or coincidence evidence. In Tasmania v B [2006] TASSC 110, Crawford J considered (at [43]) whether there was a “real chance of concoction or contamination between the two complainants” in determining whether the probative value of the evidence of each of them substantially outweighed the prejudicial effect of their evidence of similar facts. The same judge also applied that test in Tasmania v Y (2007) 178 A Crim R 481 at [40].

Objective improbability The reasoning in Hoch v The Queen, above, (at 294–295, 305) as to the criterion of the admissibility of “similar fact” evidence has also continued to be applied to the application of s 101 as to the consideration of the strength of the probative force of both tendency evidence and coincidence evidence by reference to its revelation of striking similarities, unusual features, underlying unity, system or pattern such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution: R v Fletcher (2005) 156 A Crim R 308 at 338 [59]–[60]. It was held that the evidence was admissible to prove a pattern of behaviour of sexual misconduct with adolescent males to whom access had been gained by the accused (a parish priest) as a result of their position as altar boys, whose families the appellant had befriended, and the similar conversations of a sexual nature which had led up to the sexual acts that then took place. See also R v Milton [2004] NSWCCA 195 at [31].

The circumstance that, on one interpretation of the evidence, there exists an alternative and innocent explanation of the accused’s conduct does not require its rejection if there is also an interpretation of the evidence that potentially has probative value as tendency evidence: Rodden v R (2008) 182 A Crim R 227 at [36]–[37]. However, if the only probative value of the evidence is to invite the reasoning that, as the accused has done this before, he has probably done it on this occasion also, the evidence does not pass the test stated in s 101(2): R v Li [2003] NSWCCA 407 at [13].

Motive Evidence of previous similar sexual conduct towards the complainant by the accused may be admissible not as tendency evidence but as showing that the accused had an ordinary human motive to do something as a result of sexual attraction towards the complainant; however, although not admitted as tendency evidence (and therefore unrestricted by s 97), it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child, because (a) the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: ES v R (No 1) [2010] NSWCCA 197 at [38]–[39].

If evidence of uncharged acts is to be used in such cases in any way other than context evidence, the requirements for tendency evidence need to be satisfied: Qualtieri v R (2006) 171 A Crim R 463 at [74]–[81]; DJV v R (2008) 200 A Crim R 206 at [28]–[31]; ES v R (No 1) at [40].

No discretion However, the decision as to admissibility, once the weighing exercise has been performed, is not an exercise of a judicial discretion; and if the probative value of the evidence to be adduced does not substantially outweigh any prejudicial effect it may have on the defendant, there is no residual discretion and the evidence must be rejected. Section 137 (Exclusion of prejudicial evidence in criminal proceedings) plays no part in considering the admissibility of evidence pursuant to s 97 (tendency rule) and s 98 (coincidence rule) because it has no work to do once s 101 has been applied: R v Blick (2000) 111 A Crim R 326 at [19]–[20]; R v Ellis (2003) 58 NSWLR 700 at [95]; R v Harker [2004] NSWCCA 427 at [46]; R v Nassif [2004] NSWCCA 433 at [59]–[60]; R v GAC (2007) 178 A Crim R 408 at [70]–[78]; R v Clarkson (2007) 171 A Crim R 1 at [194]–[196].

General When ruling that tendency or coincidence evidence is admissible, it is necessary to refer specifically to s 101 and to identify both the issue to which the proposed evidence is relevant and the nature of the prejudicial effect of that evidence being considered: Gardiner v R (2006) 162 A Crim R 233 at [56]–[62], [125]–[132].

In determining the issue raised by s 101, it is not sufficient to repeat the words of the section without explaining how the evidence is so prejudicial — what its risk is to a fair trial for the defendant — that it ought to be rejected as part of a balancing exercise between the competing statutory considerations: R v Harker, above, at [58]; R v RN [2005] NSWCCA 413 at [11]–[12].

Where the similarities amongst the various incidents charged are striking, and the probative value of their similarity substantially outweighs the possibility of prejudice, a direction that the jury is not entitled to reason that the number of counts meant that the accused must be guilty may be sufficient to overcome any unfair prejudice created: Samadi v R (2008) 192 A Crim R 251 at [100]–[102].

Once tendency evidence relating to the conduct charged passes through the tests for admissibility under both ss 97 and 101, it becomes available as evidence that the offence charged was committed: Galvin v R (2006) 161 A Crim R 449 at [19].

Appellate approach Both R v Milton [2004] NSWCCA 195 at [31] and R v Fletcher (2005) 156 A Crim R 308 at [56] stress that the decision of the trial judge must be on the material produced, either by a voir dire examination or witness statements, prior to its admission into evidence, so that the issues in an appeal following a conviction must be first as to whether it was open to the trial judge to conclude that s 101 had been satisfied in relation to the admission of the evidence as disclosed to the judge, and secondly, in the event that there has been no such error, on the basis that the evidence, in the form and context in which it was in fact later given, has demonstrated a miscarriage of justice. R v Fletcher was followed on this point in R v Zhang (2005) 158 A Crim R 504 at [45].

In a dissenting judgment in R v Zhang, Basten JA (at [45]) held that an appeal against a trial judge’s ruling pursuant to s 101 should be evaluated by way of rehearing. This view was preferred by the Tasmanian Court of Criminal Appeal in L v Tasmania (2006) Tas R 381 at [49]–[51], [86]. Special leave to appeal was refused in Zhang v The Queen [2006] HCATrans 423; although the interpretation given to Pt 3.6 by the majority was not necessarily endorsed. The High Court, in refusing special leave to appeal in R v Fletcher on the basis that the evidence was correctly admitted and there had been no miscarriage of justice, said that it would otherwise have referred the matter to the Full Court to consider “an interesting question of standing”: Fletcher v The Queen HCATrans 127 (10 March 2006). It remains unclear whether that Delphic statement was directed to the issues raised in this or in the previous paragraph.

In R v GAC, above, Giles JA (at [77]–[78]) commented that “(t)he last word may not have been written” on this issue, when recording that the Crown had accepted in that appeal that the principles stated in House v The King (1936) 55 CLR 499 at 504–505 applied, as had been held in R v Fletcher (at [48]) and R v Zhang (at [45]).

Legislation

Further references