Tendency, coincidence and background evidence

Pt 3.6 Evidence Act 1995 (NSW)

[4-200] Introduction

This section deals with directions to be given in relation to evidence that raises the bad character of an accused (sometimes referred to as “propensity evidence”) where it is relevant to an issue in the trial.

Part 3.6 Evidence Act 1995 contains provisions dealing with the admissibility of tendency and coincidence evidence. This is the use of evidence of other acts of misconduct for a propensity purpose: that is, to reason that because of the accused’s conduct in the past he or she is more likely to have committed the offence(s) charged.

However, there is a third category of evidence of a similar nature that is not dealt with by the Evidence Act explicitly but which falls within s 95 of the Act. This is evidence which is not being used to prove tendency or coincidence even though it may raise the accused’s past misconduct. It is often referred to as relationship or background evidence. In sexual assault cases it is called “context evidence”. This category of evidence is not used for propensity reasoning, as it is under ss 97 and 98, but to explain the conduct of the accused and/or another person (usually the alleged victim) against the background of the incident giving rise to the offence charged. This type of evidence is based upon the common law and has not been excluded by the provisions of the Evidence Act: R v Quach (2002) 137 A Crim R 345.

Evidence can be admitted for various reasons on a non-propensity basis within s 95: eg to rebut good character, R v OGD (No 2) (2000) 50 NSWLR 433; or to prove the state of mind of another person, R v Fordham (1997) 98 A Crim R 359 (non-consent of complainant).

Generally where evidence is admitted under Pt 3.1 it will be necessary to give a warning against tendency reasoning where there is a real possibility that the jury might use it in that way: Toalepai v R [2009] NSWCCA 270 at [48]; JMW v R (2014) 245 A Crim R 538 at [147]–[150]; R v Jiang [2010] NSWCCA 277 at [44].

It is always necessary for the trial judge to require the Crown to specify the purpose for which the evidence is to be placed before the jury as that will determine what sections of the Act apply: DJV v R (2008) 200 A Crim R 206 at [16]. Where evidence is not admitted as tendency or coincidence evidence then the issues will be whether the evidence is relevant and whether it should be rejected under ss 137 or 135 of the Act.

A direction as to the permissible use of the evidence and a warning against its misuse should be given when the evidence is introduced as well as in the summing up: Qualtieri v R (2006) 171 A Crim R 463 at [80].

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].

[4-210] Context evidence

Although not confined to particular offences, context evidence is most often admitted in child sexual assault cases. The complainant is permitted to give evidence of other acts of a sexual nature allegedly committed against him or her by the accused even though those acts are not charges in the indictment. The purpose of the evidence is to place the specific allegation(s) in the indictment in the context of the complainant’s overall allegations against the accused in order to assist the jury in understanding the particular allegation(s) in the charge(s).

It is essential to identify the purpose of the evidence tendered by the Crown. Evidence is not admissible simply because it proves the relationship between the complainant and the accused: R v ATM [2000] NSWCCA 475. It must be necessary and capable of providing context to the complainant’s allegations: Norman v R [2012] NSWCCA 230, otherwise the evidence is irrelevant or proves a tendency: DJV v R at [17], [29]–[30], [39]; RWC v R [2010] NSWCCA 332 at [130].

A discussion by the judge of “context evidence” as “relationship evidence” can cause confusion and result in a misdirection, because of the risk of the jury applying tendency reasoning: see for example DJV v R, JDK v R (2009) 194 A Crim R 333 at [37] and SKA v R [2012] NSWCCA 205 at [280]–[281].

As to the purpose of context evidence, see RG v R [2010] NSWCCA 173 at [38]. It answers hypothetical questions that may be raised by the jury about the allegations giving rise to the charges in the indictment. It may overcome false impressions conveyed to the jury such as that the incident “came out of the blue”: KTR v R [2010] NSWCCA 271 at [90] or “occurred in startling isolation”: KJS v R [2014] NSWCCA 27 at [38]. It may also be admitted to explain lack of complaint by the complainant: DJV v R at [28]; KJS v R at [34](v).

As to the distinction between context and tendency evidence see Qualtieri v R (2006) 171 A Crim R 463 particularly at [119]ff which was applied in SKA v R, above. In particular the evidence is not admitted to prove the guilt of the accused but may have the effect of bolstering the credit of the complainant.

As to context evidence see generally: P Johnson “Admitting evidence of uncharged sexual acts in sexual assault proceedings” (2010) 22(10) JOB 79; Criminal Practice and Procedure NSW at [3-s 97.15]; Uniform Evidence Law at [1.3.7320]; and The New Law of Evidence at 95.1.

[4-215] Suggested direction — context evidence

Before you can convict [the accused] in respect of any charge in the indictment, you must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which [the/each] charge relates as alleged by the complainant.

In addition to the evidence led by the Crown specifically on the count/s in the indictment, the Crown has led evidence of other acts of alleged misconduct by [the accused] towards [the complainant]. I shall, for the sake of convenience, refer to this evidence as evidence of “other acts”.

The evidence of other acts is as follows:

[Specify the evidence of other acts upon which the Crown relies].

It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing [the complainant’s] evidence towards proof of the charges into what the Crown says is a realistic and intelligible context. By context I mean the history of the conduct by [the accused] toward [the complainant] as [he/she] alleges it took place.

[Recite the Crown’s submission of the issue/s in the trial which justified the reception of context evidence.]

Without the evidence of these other acts the Crown says, you may wonder, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in anyway. If you had not heard about the evidence of other acts, you may have thought that [the complainant’s] evidence was less credible because it was less understandable. So the evidence is placed before you only to answer questions that might otherwise arise in your mind about the particular allegations in the charges in the indictment.

[The following should be adapted to the circumstances of the case:]

If, for example, the particular acts charged are placed in a wider context, that is, a context of what [the complainant] alleges was an ongoing history of [the accused’s] conduct toward [her/him], then what might appear to be a curious feature of [the complainant’s] evidence — that [she/he] did not complain about what was done to [her/him] on a particular occasion — would disappear. It is for that reason that the law permits a complainant to give an account of the alleged sexual history between herself or himself and an accused person in addition to the evidence given in support of the charge/s in the indictment. It is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. [The complainant’s] account of other acts by [the accused] allows [him/her] to more naturally and intelligibly explain [her/his] account of what allegedly took place.

The Crown can therefore lead evidence of other acts of a sexual nature between [the accused] and [the complainant] to place the particular charge/s into the context of [the complainant’s] account of the whole of [the accused’s] alleged conduct.

However, I must give you some important warnings with regard to the use of this evidence of other acts.

Firstly, you must not use this evidence of other acts as establishing a tendency on the part of [the accused] to commit offences of the type charged. You cannot act on the basis that [the accused] is likely to have committed the offence/s charged because [the complainant] made other allegations against [him/her]. This is not the reason that the Crown placed the evidence before you. The evidence has a very limited purpose as I have explained it to you, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.

Secondly, you must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by [the accused] but has charged particular allegations arising in what [the complainant] says, was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in [the/each] charge.

You must not reason that, just because [the accused] may have done something wrong to [the complainant] on some or other occasion, [he/she] must have done so on the occasion/s alleged in the indictment. You cannot punish [the accused] for other acts attributed to [him/her] by finding [the accused] guilty of the charge/s in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.

[Note: attention should be directed to any particular matters that might affect the weight to be given to the evidence.]

[4-220] Background evidence

This is usually evidence of the misconduct of an accused that is being tendered for a non-propensity purpose and, therefore, is admissible under Pt 3.1.

The term “background evidence” is adopted here to refer to relationship and transactional evidence. Relationship evidence is used here in a narrow sense and is to be clearly distinguished from “context evidence” in child sexual assault offences. Not only is the use to be made of the evidence different from context evidence, but also the nature of the evidence will usually be different.

Background evidence places the accused’s alleged conduct and/or state of mind within the surrounding events including the relationship between the accused and the victim, or a series of other incidents which form part of chain of events. Background evidence tends to have a close temporal connection with the incident giving rise to the charge. Background evidence is admissible to prove that the accused committed the offence charged as circumstantial evidence.

Background evidence, however, is not tendency evidence. It does not require tendency reasoning to make it relevant although as circumstantial evidence it relies upon available inferences or conclusions arising from the background evidence to prove the charge.

See generally: Criminal Practice and Procedure NSW at [3-s 97.1] and [3-s 97.10]; Uniform Evidence Law at [1.3.7320]; and The New Law of Evidence at 97.7.

(a) Relationship evidence

Simply because the evidence concerns the relationship between the accused and the alleged victim it does not follow that the evidence is admissible: Norman v R [2012] NSWCCA 230 at [33]. The significant questions on admissibility are:

(i) 

Is the evidence relevant?

(ii) 

What is the purpose for which it is being tendered?

The evidence can be admitted to show why certain persons acted as they did where that is a relevant consideration: R v Toki (No 3) (2000) 116 A Crim R 536; R v FDP (2009) 74 NSWLR 645.

It can prove animosity between the accused and the deceased in order to rebut accident: see Wilson v The Queen (1970) 123 CLR 334; or to prove the accused’s state of mind: R v Serratore [2001] NSWCCA 123; or to prove identification of the offender: R v Serratore (1999) 48 NSWLR 101.

It can be used to prove that the relationship between two persons was not an innocent one but was based upon the supply of drugs, see Harriman v The Queen (1989) 167 CLR 590; R v Quach (2002) 137 A Crim R 345, R v Cornwell (2003) 57 NSWLR 82.

Admissibility can depend upon the temporal connection between the evidence and the offence: R v Frawley [2000] NSWCCA 340 (6 weeks was considered not to be too long).

(b) Transactional evidence

Evidence showing a set of connected events can be admissible even though revealing misconduct by the accused. Transaction evidence will be admissible whether it occurred before or after the alleged offence: R v Mostyn (2004) 145 A Crim R 304 at [119]. It can be used to identify the accused as the offender or the state of mind of the accused at a particular time proximate to the time of the offence. The following are some further examples:

  • Conduct during a massage before an alleged sexual assault: Jiang v R [2010] NSWCCA 277.

  • Identification of the accused as the offender, see O’Leary v The Queen (1946) 73 CLR 566.

  • Evidence which shows the state of mind of the accused at a time close to the commission of the alleged offence: see R v Adam (1999) 106 A Crim R 510 at [26]; R v Player [2000] NSWCCA 123 at [22]; R v Serratore [2001] NSWCCA 123; R v Mostyn at [135].

  • A system of work: see R v Cittadini (2008) 189 A Crim R 492 at [26]–[27].

A direction warning the jury against tendency reasoning is necessary where there is a real possibility that the jury might use the evidence for a tendency purpose: Jiang v R at [44].

[4-222] Suggested direction — background evidence

The function of a direction in the case of background evidence is to inform the jury of the limited purpose for which the evidence is admitted and to direct them against using the evidence for tendency reasoning. The content of the direction will depend substantially upon the nature of evidence and the purpose it is being admitted. For example, if it is admitted to rebut a defence of accident. The direction should contain the following components:

The evidence led by the Crown [recite the form of the background evidence] was placed before you as evidence of background to the incident giving rise to the charge/s before you. The Crown’s argument is that without that evidence you would not have the whole history that is necessary to understand the full significance of the incident upon which the charge is based. The Crown argues that this evidence:

[State Crown argument eg explains why the accused and the victim acted in the way they did or reveals the state of mind of the accused at the relevant time or rebuts accident or identifies the accused as the offender].

That is why this evidence was placed before you and how the Crown relies upon it in proof of the charge. However, that is the only reason that the evidence is before you and you cannot use it for any other purpose. Whether you give it the significance that the Crown asks you to place on the evidence is a matter for you. But that is the only relevance it has to your deliberations.

In particular you must not use that evidence to reason that, because [the accused] has behaved in a certain way on a particular occasion, [he/she] must have behaved in that or a similar way on the occasion giving rise to the charge. You must not use that evidence to reason that [the accused] is the type of person who would commit the offence with which [he/she] has been charged. You cannot punish [the accused] for other conduct attributed to [him/her] by finding [the accused] guilty of the charge/s in the indictment. That is not the Crown’s argument and it would be contrary to the law and your duty as a juror to use the evidence for a purpose other than the specific basis relied upon by the Crown.

[4-225] Tendency evidence

The admission of tendency evidence is governed by Pt 3.6 Evidence Act. It requires two preconditions: (a) the giving of notice and (b) that the evidence has “significant probative value”.

(a) 

The requirement to give notice was considered in R v Gardiner (2006) 162 A Crim R 233 at [128], Bryant v R (2011) 205 A Crim R 531 and Bangaru v R (2012) 269 FLR 367 at [256] where the tendency of the accused was not specified. See also R v AC [2018] NSWCCA 130 at [21]ff. As to dispensing with the requirement of notice for the tendering of tendency evidence, see s 100 and R v Harker [2004] NSWCCA 427.

(b) 

As to the admissibility of evidence under s 97 see The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen (2017) 344 ALR 187. Tendency evidence should be distinguished from coincidence evidence: R v Nassif [2004] NSWCCA 433.

In determining the probative value of evidence for the purposes of ss 97(1)(b) and 137, a trial judge should assume the jury will accept the evidence and, thus, should not have regard to the credibility or reliability of the evidence: IMM v The Queen at [51]–[52], [54], [58]; The Queen v Bauer at [69]; and see below under "Concoction and contamination".

For evidence to be admissible as tendency it is not necessary that it exhibit 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. Depending upon the issues in the trial, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it: Hughes v The Queen at [37]. Section 97(1) does not condition the admissibility of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. Commonly there may be a similarity between the tendency asserted and the offences charged: Hughes v The Queen at [39].

The test posed by s 97(1)(b) is whether the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged: Hughes v The Queen at [40]. In the case of 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].

In child sexual assault trials, it is common for the complainant’s account to be challenged on the basis that it is fabricated. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded: Hughes v The Queen at [40].

Matters that must be considered under s 97

In assessing whether evidence has significant probative value in relation to each count, two interrelated but separate matters must be considered: first, the extent to which the evidence supports the tendency; and, second, the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but of whether an offence was committed, it is important to consider both matters: Hughes v The Queen (2017) 344 ALR 187 at [41].

Therefore, there is likely to be a high degree of probative value where: (i) the evidence, alone 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].

Unlike the common law preceding s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, 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 at [42]; The Queen v Bauer [2018] HCA 40 at [61].

Prejudicial effect of tendency evidence

If the evidence is admissible under s 97, it must then satisfy s 101, which is concerned with balancing its probative value against its prejudicial effect. In The Queen v Bauer [2018] HCA 40 at [73], the High Court described the expression “prejudicial effect” in s 101 [and “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137] as conveying the idea of harm to an accused’s interests by reason of a risk the jury would use the evidence improperly in some unfair way. As to the application of that section see R v Ellis (2003) 58 NSWLR 700 and Hughes v R [2015] NSWCCA 330 at [189]–[193]. In Hughes v The Queen (2017) 344 ALR 187 at [17], the High Court articulated how tendency evidence may occasion prejudice to an accused:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

In determining the prejudicial effect that evidence may have on an accused, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may reduce the prejudicial effect: Mol v R [2017] NSWCCA 76 at [36]; DAO v R (2011) 81 NSWLR 568 at [171]. It is important that the prejudice to a defendant be specifically identified for the purposes of the weighing exercise required by s 101 and in considering appropriate directions: BC v R (2015) 257 A Crim R 340 at [107]–[110]; Mol v R at [36].

Concoction and contamination

Generally, a court is not required to assess the risk of joint concoction as part of the test in s 97(1)(b): The Queen v Bauer [2018] HCA 40 at [69]; Abbott (a pseudonym) v R [2017] NSWCCA 149 at [16]. The High Court in The Queen v Bauer [2018] HCA 40 at [69]-[70] held that under the Evidence Act, provided the evidence is rationally capable of being accepted by the jury, the possibility of contamination, concoction or collusion should be assessed by the jury as part of its assessment of factors that may affect the credibility and reliability of the evidence: see also IMM v The Queen (2016) 257 CLR 300 at [59]; Jones v R [2014] NSWCCA 280 at [85]–[90]; DJW v R [2015] NSWCCA 164 at [42]–[48]); McIntosh v R [2015] NSWCCA 184; Hughes v R [2015] NSWCCA 330 at [87]–[99], [201]–[203]. Unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, determining the probative value of the evidence excludes consideration of credibility and reliability: The Queen v Bauer at [69]; Hughes v R (above) at [94]; Jones v R at [88]–[90]; McIntosh v R at [47]–[49].

Standard of proof

There is no requirement under the Evidence Act that an accused’s tendency must be proved beyond reasonable doubt. In The Queen v Bauer [2018] HCA 40, the High Court stated that juries should not ordinarily be directed that they could not act on evidence of uncharged acts unless they were satisfied those acts were proved beyond reasonable doubt: at [86].

The suggested direction for tendency evidence does not require that the tendency be proved beyond reasonable doubt. However, it was apparent in The Queen v Bauer that the High Court envisaged a direction in those terms may be necessary if there was a significant possibility of a jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt: at [86]. If a trial judge forms a view that it should be proved to that standard, the direction should be amended.

The tendency evidence may arise from the charges in the indictment, in that the joinder of the charges was based upon the admissibility of each of the charges as evidence of a tendency in respect of each of the other charges. In such a case the suggested direction will need to be amended.

A direction as to the use of tendency evidence should be given as soon as the evidence is tendered and again in the summing up: Qualtieri v R (2006) 171 A Crim R 463 at [80].

[4-227] Suggested direction — tendency evidence

[The accused] is charged only with the offence/s stated in the indictment. You have before you evidence that the Crown relies upon as establishing that [he/she] committed [that/those] offence/s. However, you also have evidence that [the accused] … [specify evidence upon which the Crown relies as tendency evidence].

The Crown says that evidence reveals that [the accused] has a tendency to [act in a particular way/have a particular state of mind] namely … [specify] making it more likely [he/she] committed the offence/s charged in the indictment.

The evidence suggesting that [the accused] had that tendency can only be used by you, in the way the Crown asks you to use it, if you make two findings. The first finding is that one or more of those acts occurred. In making that finding you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you find that a particular act or acts relied upon actually took place. If you find that none of the act/s occurred, then you must put aside any suggestion that [the accused] had the tendency advanced by the Crown.

If you do find that one or more of those acts occurred, then you go on to consider whether, from the act or acts that you have found occurred, you can conclude that [the accused] had the tendency to [state the tendency that the Crown alleges]. If you cannot draw that conclusion, then again you must put aside any suggestion that [the accused] had the tendency alleged.

So, if having found one or more of the acts attributed to [the accused] occurred and you also conclude that [the accused] had the tendency to [act in the particular way/have a particular state of mind], you may use the fact of that tendency [or state of mind] in considering whether [the accused] committed the offence(s) charged.

You should bear in mind that this is just one part of the evidence relied upon by the Crown. You should give it what weight you think it deserves in the context of all of the evidence before you.

The evidence of other acts must not be used in any other way. It would be completely wrong to reason that, because [the accused] has committed one crime or more acts of misconduct, [he/she] is therefore generally a person of bad character and for that reason must have committed the offence/s charged. You cannot punish [the accused] for other conduct attributed to [him/her] by finding [the accused] guilty of the charge/s in the indictment. That is not the purpose of the evidence being placed before you and you must not reason in that way. You cannot use it in any way against [the accused] unless you accept the Crown’s argument that it discloses a tendency and therefore makes it more likely that [the accused] committed the offence/s charged against [him/her].

Even if you accept that [the accused] has a tendency to [act in a particular way/have a particular state of mind] namely … [specify], you need to consider whether or not [he/she] [acted in that particular way/had that particular state of mind] on the occasion when the Crown alleges [he/she] [specify].

[Add, if appropriate] The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have [acted/thought]. You must be careful to avoid allowing any emotional response to distract you from a calm and objective assessment of this issue.

The evidence led by the Crown to prove that [the accused] had a tendency to [act in a particular way/have a particular state of mind] is separate from the specific allegations in the indictment.

You must not substitute the evidence led by the Crown to prove that [the accused] had that tendency for the specific allegations in the indictment. You are concerned with the particular and precise occasion alleged in [the/each] charge/s. If you find that [the accused] had the tendency [or state of mind] alleged by the Crown it may indicate that the particular allegations are true, but remember you are required to find that each specific charge is proved beyond reasonable doubt before you can find [him/her] guilty.

[4-230] Tendency evidence admitted in child sexual assault

In child sexual assault cases evidence of a tendency of the accused to have a sexual interest in the complainant is likely to meet the significant probative value test in s 97 even if that evidence is only given by the complainant: The Queen v Bauer [2018] HCA 40 at [48]; HML v The Queen (2008) 235 CLR 334 at [27], [118], [171]-[173], [234], [287], [289], [336], [364], [387], [510]-[511].

The tendency evidence may arise from the charges in the indictment, in that the joinder of the charges was based upon the admissibility of each of the charges as evidence of a tendency in respect of each of the other charges: see for example Bangaru v R (2012) 269 FLR 367 at [272]. In such a case the suggested direction will need to be amended.

In cases involving alleged offending against multiple complainants "there must ordinarily be some feature of or about the offending which links the two together". If there is "some common feature of or about the offending, 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": The Queen v Bauer at [58].

A direction concerning any other use of the evidence for which the Crown contends (e.g. as context evidence) might be formulated so as to apply the suggested directions about impermissible uses to both.

A direction as to the use of tendency evidence should be given as soon as the evidence is tendered and again in the summing up: Qualtieri v R (2006) 171 A Crim R 463 at [80].

The following is a suggested direction for a single complainant child sexual assault case. Adaptation will be required where there are multiple complainants.

[4-232] Suggested direction — tendency evidence in a child sexual assault case

As you would be aware [the accused] is charged only with the offence/s stated in the indictment. You have before you evidence that the Crown relies upon as directly establishing that [he/she] committed [that/those] offence/s. However, you also have evidence that the Crown relies upon to show [the accused] had a sexual interest in [the complainant] and was willing to act upon it in the way that [the complainant] alleges. The Crown says you will be satisfied that [the accused] had a sexual interest in [the complainant] on the basis of what I shall refer to as other acts of a sexual nature committed against [the complainant]. The Crown says that because [the accused] had this sexual interest you would find it more likely that [he/she] committed the offence/s charged in the indictment.

[Outline the Crown’s evidence upon which it relies to prove that the accused had a sexual interest in the complainant.]

Before you can use the evidence of other acts in the way the Crown asks you to use it you must make two findings. The first finding is that one or more of those other acts occurred. In making that finding you do not consider each act in isolation but consider all the evidence and ask yourself whether you find a particular act relied upon actually took place.

If you are not satisfied any of the acts relied on by the Crown occurred, you must put aside any suggestion that [the accused] had the sexual interest in [the complainant] as alleged by the Crown and decide the case on rest of the evidence.

If you do find one or more of those acts occurred, then you go on to consider whether, from the act or acts that you have found occurred, you can infer that [the accused] had a sexual interest in [the complainant]. If you cannot draw that inference, then again you must put aside any suggestion that [the accused] had a sexual interest in [the complainant].

So, if having found one or more of the acts attributed to [the accused] to have occurred and from the act/s infer or conclude that [the accused] had the sexual interest in [the complainant], you may use that fact in determining whether [the accused] committed the offence/s charged.

The evidence must not be used in any other way. It would be completely wrong to reason that, because [the accused] has committed one crime or has been guilty of one piece of misconduct, [he/she] is therefore generally a person of bad character and for that reason must have committed the offence/s charged. That is not the purpose of the evidence being placed before you and you must not reason in that way. You cannot punish [the accused] for other conduct attributed to [him/her] by finding [the accused] guilty of the charge/s in the indictment. You cannot use it in any way prejudicial to [the accused] unless you accept the Crown’s argument that it shows that [the accused] had a sexual interest in [the complainant] and therefore makes it more likely that [the accused] committed the offence/s charged against [him/her].

Further you must not substitute the evidence of the other acts led to prove that [the accused] had a sexual interest in [the complainant] for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by [the accused] but has charged particular allegations arising in, what [the complainant] says, was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in [the/each] charge/s. If you find that [the accused] had a sexual interest in [the complainant], it may indicate that the particular allegations are true, but remember you are required to find that each charge in the indictment is proved beyond reasonable doubt before you can find [him/her] guilty.

[4-235] Coincidence evidence

The admissibility of coincidence evidence is governed by s 98 Evidence Act. It requires two preconditions: (a) the giving of notice and (b) that the evidence has “significant probative value”.

See generally Criminal Practice and Procedure NSW at [3-s 98.1]ff; and Uniform Evidence Law at [1.3.6880] ff.

(a) 

The requirement to give notice was considered in R v Zhang (2005) 158 A Crim R 504 at [131] and Bryant v R (2011) 205 A Crim R 531. As to the dispensing of the requirement of notice for the tendering of coincidence evidence, see s 100 and generally R v Harker [2004] NSWCCA 427.

(b) 

The approach to the admissibility of coincidence evidence was considered in DSJ v R (2012) 84 NSWLR 758 at [6]–[9], [11], [56], [72]–[82], especially as to the role of the judge and that of the jury in the finding of facts. The decision approved R v Zhang. See also the discussion in R v Gale [2012] NSWCCA 174 at [29]–[31]. These three decisions were explained and applied in R v Matonwal [2016] NSWCCA 174 at [70]–[76]. As to the difference between coincidence and tendency evidence: see O’Keefe v R [2009] NSWCCA 121; R v Nassif [2004] NSWCCA 433 at [51]; Doyle v R [2014] NSWCCA 4 at [109].

If the evidence is admissible under s 98, it must then satisfy s 101, which is concerned with balancing its probative value against its prejudicial effect. As to the application of that section, see R v Ellis (2003) 58 NSWLR 700. The questions posed by ss 98 and 101 turn on a mode of reasoning based on the improbability that something was a coincidence: see the explanation in Selby v R [2017] NSWCCA 40 at [24]–[26]; Ceissman v R [2015] NSWCCA 74 at [42]. The improbability that something was a coincidence is not displaced by the fact that the two (or more) events bear some dissimilarities. The question is whether the dissimilarities are relevant in that they undercut the improbability of something being a coincidence and whether they detract from the strength of the inferential mode of reasoning permitted by s 98: Selby v R at [24], [26].

As to the possibility of concoction, see Tendency evidence at [4-225] above.

[4-237] Suggested direction where coincidence evidence admitted as part of a circumstantial case

In cases where the coincidence evidence is not the only evidence against the accused, there is no requirement that the coincidence evidence be proved beyond reasonable doubt. However where the coincidence evidence is the only, or primary, evidence against the accused, for example to identify the accused as the perpetrator of the crime charged by proof that he or she committed another offence of marked similarity, then the coincidence evidence will have to be proved beyond reasonable doubt.

A direction as to the use of coincidence evidence should be given as soon as the evidence is tendered and again in the summing up: Qualtieri v R (2006) 171 A Crim R 463 at [80].

The coincidence evidence may arise from the charges in the indictment, in that the joinder of the charges was based upon the admissibility of each of the charges as evidence of coincidence in respect of each of the other charges, see for example O’Keefe v R [2009] NSWCCA 121. In such a case the suggested direction will need to be amended. However, simply because the charges are joined on the basis of the availability of coincidence reasoning, the judge is not required to direct the jury that it must find one of the offences proved beyond reasonable doubt before it can use that charge as basis of coincidence reasoning: Folbigg v R (2005) 152 A Crim R 35 at [103].

The suggested direction concerns proving the accused’s identity but the coincidence evidence can be used as proof of a state of mind, for example, to rebut accident. Coincidence evidence is a form of circumstantial evidence and will usually form part of the circumstantial case together with other evidence that may indirectly prove the guilt of the accused.

As should be apparent to you, [the accused] is charged only with the offence/s stated in the indictment. You have before you evidence that the Crown relies upon as establishing that [he/she] committed [that/those] offence/s.

[Briefly refer to that evidence other than the coincidence.]

However, as part of its case against [the accused], the Crown has led evidence that [the accused] … [specify the coincidence evidence].

That evidence is before you because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that a jury would be satisfied that the person who did one act (or set of acts) must have done the other/s. That is to say, there is such a significant similarity between the acts, and the circumstances in which they occurred, that it is highly improbable that the events occurred simply by chance, that is, by coincidence. The improbability of two or more events occurring by chance, or coincidently, may lead to a conclusion that an accused person committed the act (or had the state of mind) that is the subject of the charges.

In this case, the Crown says that, provided you are satisfied that [the accused] did … [specify conduct which is the basis of the coincidence evidence], then [that/those] act/s, and the circumstances in which [it/they] [was/were] done, were so similar to the act/s alleged in the indictment, that you would conclude beyond reasonable doubt that [the accused] must have committed the offence/s with which [he/she] has been charged.

The evidence of the pattern of behaviour can only be used in the way the Crown asks you if you find two matters: firstly, that [the accused] did the other acts; and secondly, that they are so similar to the acts giving rise to the charge, that you find that it is highly improbable that both acts were committed by a different person. If you accept those two matters, then you can use that evidence, together with the other evidence in the Crown’s case, to be satisfied beyond reasonable doubt that [the accused] committed the acts giving rise to the offence/s charged in the indictment.

However this is the only way you can use the evidence of other acts. You cannot reason that because [the accused] may have committed the other acts [he/she] is the type of person who will commit criminal activity generally or that [he/she] is a person who is likely to have committed the offence/s charged. The evidence is not placed before you for that type of general reasoning. You cannot punish [the accused] for other conduct attributed to [him/her] by finding [the accused] guilty of the charge/s in the indictment.

[4-240] Suggested direction where coincidence evidence relied upon for joinder of counts of different complainants

Coincidence evidence may be admitted to bolster the evidence of the witnesses, for example in a case where the evidence of two complainants is admitted in respect of charges in the indictment of offence committed against each: R v F (2002) 129 A Crim R 126; Saoud v R (2014) 87 NSWLR 481 at [49]–[53]. If the evidence of the two witnesses shows sufficient similarity to be admissible as coincidence evidence, it can be used to prove that the two witnesses would not make up those versions independently and by chance. In such a case the issue of concoction may arise and require a direction to the jury that they should reject the possibility of concoction before using the evidence for coincidence reasoning.

There are here on the indictment allegations against [the accused] made by two complainants [complainant A and complainant B]. Of course what [complainant A] says about what [he/she] alleges [the accused] did to [him/her] is primary evidence relied upon by the Crown to prove the charge/s in respect of [her/him]. It is the same situation with [complainant B]. Ultimately you have to be satisfied beyond reasonable doubt that each complainant is honest and accurate in [his/her] allegations upon which the charges are based.

[Detail in respect of each complainant the allegation and the evidence in respect of each complaint, for example, evidence of complaint, if any.]

As I have explained to you, although the trial of [the accused] in respect of each of the complainant’s allegations is being heard at the same time you still have to reach separate decisions on each of the allegations made by each of the complainants.

The trials of the charges concerning the two complainants are being heard together because the Crown says that you can use the evidence given by one of the complainants as evidence against [the accused] in respect of the charges involving the other complainant. The Crown argues that, in determining whether it has proved beyond reasonable doubt the allegations made by [complainant A] and giving rise to the charges involving [her/him], you can take into account, in the way I shall explain to you, the evidence given by [complainant B] and visa versa.

The Crown argues that, because the allegations made by each of the complainants against [the accused] are so similar in the particular conduct attributed to [the accused], it is highly likely that each is telling you the truth in giving [his/her] separate accounts. The Crown in effect says that [the accused] has a particular and unusual way of conducting [himself/herself] or a peculiar pattern of behaving which is apparent from the accounts given by [complainant A and complainant B] when they are considered together. The Crown’s argument is that the possibility of each making allegations that are so similar by chance or coincidence is so remote that the only explanation is that [the accused] acted in the same way towards both of them and, therefore, their accounts are true. The Crown alleges that the similarities in the allegations are as follows:

[Outline the similarities relied upon by the Crown as its coincidence evidence].

The Crown’s argument can only succeed if: firstly, you find that those similarities are present in respect of the allegations made by [complainant A and complainant B] and, secondly, that they are so similar they amount to a particular and peculiar pattern of behaviour such that it is highly improbable that each could be giving such an account by sheer chance or coincidence. In other words the Crown argues that the accounts are such that the only explanation for their similarity is that they are true accounts of what [the accused] did to each. The more similar the accounts, then the less likely it may be that the accounts can be explained by chance or invention.

Of course if you do not accept that such similarities exist, or you reject the argument that they disclose a particular pattern of behaviour attributed to [the accused], then you would reject the Crown’s argument and look at the evidence of [complainant A and complainant B] independently without having regard to the evidence of the other.

[Refer to arguments of defence including dissimilarities and, if appropriate, the possibility of concoction accounting for the similarity in the allegations.]

You should understand that this argument of the Crown is the only reason why the allegations made by [complainant A and complainant B] are being dealt with together in the one trial. If you do not accept the Crown’s argument, then you must disregard any similarities in the accounts and deal with the charges involving [complainant A and complainant B] completely separately. You cannot use the evidence of one to prejudice [the accused] in respect of the charges involving the other if you reject the Crown’s argument as to the accounts disclosing a pattern of behaviour that can be relied upon as proof of the charges.