The admission of tendency evidence is governed by Pt 3.6 Evidence Act and in particular ss 97, 97A, 100 and 101.

Section 97(1) relevantly provides:

Taylor v R [2020] NSWCCA 355 at [85]–[122] contains a useful summary of the legislative history of, and caselaw on, tendency evidence. The following discussion of the caselaw must be read with the terms of s 94(4) in mind (which commenced after Taylor v R). This section puts “beyond doubt that any principle or rule of common law or equity preventing or restricting the admissibility of this kind of evidence is not relevant when applying Pt 3.6 of the Evidence Act”: see Second Reading Speech, Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1916.

Tendency evidence is a form and special class of circumstantial evidence: DPP v Roder (a pseudonym) [2024] HCA 15 at [23]. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had a particular state of mind, or acted in a particular way, on the occasion in issue. The starting point requires identifying the tendency and the fact(s) in issue which it is adduced to prove: Hughes v The Queen (2017) 263 CLR 338 at [16].

The tendency sought to be proved must be clearly articulated before a ruling on admissibility of the evidence for a tendency purpose can be made: New v R [2025] NSWCCA 32 at [180]. Otherwise, there will usually be three issues in determining the admissibility of tendency evidence:

Subject to s 97(2), a party seeking to adduce tendency evidence must give reasonable notice in writing in accordance with cl 5 of the Evidence Regulation 2020: ss 97(1)(a), 99. As to the date by which notice should be given, see s 99; District Court Rules 1973, Pt 53 r 10C; Supreme Court Rules 1970, Pt 75 r 3(6); and Uniform Civil Procedure Rules, r 31.5.

The purpose and significance of the notice requirement (including giving the other party a reasonable opportunity to address and respond to it) was discussed in Bryant v R [2011] NSWCCA 26 at [50]–[51] and R v AC [2018] NSWCCA 130 at [23]–[25]. As for the contents of a properly drafted tendency notice, see R v Gardiner [2006] NSWCCA 190 at [128]. Section 100 sets out the circumstances in which notice may be dispensed with. The power conferred by s 100(1) is to “direct” that the tendency rule does not apply despite a party’s failure to give notice, and accordingly is subject to s 192 of the Act: R v AC at [22]; R v Harker [2004] NSWCCA 427 at [34]. When the power to dispense is engaged, the task of the court is to weigh the interests of justice, in the circumstances of the particular case, taking into account the purposes for the notice requirement, other ways in which those purposes might be achieved, and any reason for dispensing with the requirement notwithstanding that those purposes might not be achieved: R v AC at [26]ff.

Care must be taken by the court not to import elements into the asserted tendency in addition to those stated in a tendency notice or amended tendency notice. Reformulation of a tendency without providing notice under s 97(1)(a) may render evidence inadmissible: see TL v The King [2022] HCA 35 at [33]; see also New v R [2025] NSWCCA 32 at [180]. Usually, it is desirable that any amendment to an asserted tendency should be by way of an amended notice by the relevant party seeking to rely upon the tendency evidence. Otherwise, any disparity between the tendency asserted or evidence identified in the tendency notice and that asserted or relied on in the trial should be the subject of a direction under s 100(1): cf DP v R [2025] NSWCCA 45 at [63]–[67].

In determining the probative value of evidence for the purposes of s 97(1)(b), 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 (2016) 257 CLR 300 at [51]–[52], [54], [58]; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at [69]; TL v The King [2022] HCA 35 at [28].

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 (2017) 263 CLR 338 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].

The assessment of whether evidence has significant probative value involves consideration of two matters: 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: Hughes v The Queen at [41]; see also DPP v Roder (a pseudonym) [2024] HCA 15 at [24]. 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, in other words, the evidence must be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue: [41]; see also TL v The King at [28].

Evidence of a more generally expressed tendency is less likely to satisfy the threshold of “significant probative value”. While generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact(s) in issue and may not establish more than relevance: TL v The King at [29] (and see the cases cited there); Hughes v The Queen at [64].

There is no general rule requiring close similarity between the tendency evidence and the offence: TL v The King at [29]. 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] NSWCCA 306; R v PWD [2010] NSWCCA 209; Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682. It is not necessary that the common features be “striking”. What is needed is a sufficient link between the distinct events as to mean that one piece of conduct has significant probative value as regards another. That link need not be peculiar: Decision Restricted [2022] NSWCCA 246 at [93]; The Queen v Bauer (a pseudonym) at [57]. 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; however, commonly there may be a similarity between the tendency asserted and the offences charged: Hughes v The Queen at [39].

A “close similarity” between the tendency evidence and the charged offence will almost certainly be required where the evidence is adduced to prove the identity of an offender: Hughes v The Queen at [39]. However, this should be understood as referring to situations where there is little or no other evidence of identity apart from the tendency evidence and the identity of the perpetrator is “at large”: TL v The King at [30], [38].

See also the The Queen v Bauer (a pseudonym), at [58], [60], where the Court considered the probative value of tendency evidence in sexual offence proceedings involving a single complainant, compared to multiple complainants. However, that discussion should now be read in light of s 97A — concerning the presumption of significant probative value for child sexual assault proceedings — see further below.

Section 94(4) and (5) were inserted into the Act in 2020 and affects hearings which commenced from 1 July 2020.

Section 94(4) states 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.

Section 94(5) 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, in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at [69]–[70], the Court left open the possibility that, where the risk of contamination, concoction or collusion is so great it would not be open to the jury rationally to accept the evidence, it could be taken into account in assessing probative value. In the Second Reading Speech, the Attorney General stated: “Proposed section 94(5) … closes that small gap left open by the courts …” (Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1917).

Section 97A applies to proceedings in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence (as defined in s 97A(6)) is a fact in issue (s 97A(1)).

Under s 97A(2) there is a presumption that tendency evidence about the following will have significant probative value for the purposes of ss 97(1)(b) and 101(2):

Section 97A took effect on 1 July 2020. The Attorney General described the provision as altering the operation of s 97(1)(b) for child sexual abuse prosecutions in order to facilitate greater admissibility of tendency evidence (see Second Reading Speech, Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1914).

A court retains a discretion to determine such evidence does not have significant probative value if satisfied there are sufficient grounds to do so: s 97A(4). However, s 97A(5) lists the following matters (whether considered individually or collectively) the court is not to take into account in determining whether there are sufficient grounds, unless there are exceptional circumstances in relation to those matters:

The terms “sufficient grounds” (in s 97A(4)) and “exceptional circumstances” (in s 97A(5)) are not defined. As to the former, in the Second Reading Speech (NSW, Legislative Assembly, Debates, 25 February 2020, p 1915) the Attorney General said:

And of the latter:

For the purposes of determining whether “significant probative value” is satisfied in a child sexual assault case, s 97A creates a rebuttable presumption that that threshold is met for any tendency of the kinds described in subs (2) of s 97A: R v Clarke [2023] NSWCCA 123 at [16]. Section 97A evinces a clear legislative intention to make it easier for the prosecution to adduce tendency evidence: Davidson (a pseudonym) v R [2024] NSWCCA 60 at [46]. It represents a very significant departure from the previous state of the law: R v Clarke at [37]–[38].

In Stenner-Wall v R [2023] NSWCCA 163 at [14], Beech-Jones CJ at CL (agreeing with Button J; Hamill J also agreeing) noted that exceptional circumstances may be established where the particular circumstances of one or more of the matters identified in s 97A(5) are such as to demonstrate the absence of significant probative value on the part of the subject evidence: [14].

The transitional provisions for the amendment state s 97A does not apply where the hearing of proceedings began before the amendment commenced: Sch 2, cl 28. Where the application of the transitional provisions is in issue, it will be necessary to identify the relevant “hearing” of the proceedings and to determine when it began: JW v R [2022] NSWCCA 206 at [54].

Subject to s 101(3), tendency evidence about a defendant adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).

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.

In The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at [73], the High Court described prejudice 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. See also Hughes v R (2015) 93 NSWLR 474 at [189]–[193]; Taylor v R [2020] NSWCCA 355 at [122 (xvii)–(xxviii)].

In Hughes v The Queen (2017) 263 CLR 338 at [17], the High Court articulated how tendency evidence may occasion prejudice to an accused:

In determining whether the probative value of tendency evidence outweighs the danger of unfair prejudice to an accused, the trial judge must have regard to the directions which can be given to remedy or ameliorate any unfair prejudice which might be occasioned in the absence of directions and whether those directions would be sufficient to remedy or ameliorate that prejudice: Davidson (a pseudonym) v R [2024] NSWCCA 60 at [51]. It is important that the unfair 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] NSWCCA 327 at [107]–[110]; Mol v R [2017] NSWCCA 76 at [36] (decided prior to amendment of s 101, however the principle still applies).

In circumstances where tendency evidence has been adduced by the accused, the jury should not be directed to exercise caution before drawing inferences based on that tendency evidence. Moreover, the tendency directions should not be tied to circumstantial evidence directions requiring that all other rational inferences need be excluded because it suggests that the accused bears an onus of proof: Decision Restricted [2023] NSWCCA 128 at [39]–[48].

It is appreciated that the structure of a summing-up is a matter for the personal preference of judges. However, consideration should be given as to when a tendency direction might best be given to minimise the risk of confusion on the jury’s part as to any standard of proof to be applied. For example, it may be given before the directions about the onus and standard of proof and the essential elements of the offence/s and shortly after directions concerning the drawing of inferences. The timing may vary depending on the issues in the particular trial.

The following suggested direction complies with s 161A(1) Criminal Procedure Act 1986 in not directing that tendency evidence needs to be proved beyond reasonable doubt. It will require modification as to the standard of proof where the exception in s 161A(3) applies. The observations in DPP v Roder (a pseudonym) [2024] HCA 15 (referred to above) and JS v R [2022] NSWCCA 145 at [40] should also be taken into account, including that the directions need to be crafted carefully to avoid undermining general directions concerning proof beyond reasonable doubt for each charge.

A tendency may be proved by evidence of “the character, reputation or conduct of a person, or a tendency that a person has or had”: s 97(1) Evidence Act. The suggested direction refers only to “conduct” and will require modification in a case in which it is sought to be proved in an alternative way.

Inferential reasoning is usually involved in deciding whether a tendency has been established so it will be helpful if the jury has already been directed as to the care required in the drawing of inferences generally.

Trial judges should be alive to any possible prejudicial misuse of tendency evidence that might arise in a particular case and add any further warning that may be required.

IMPORTANT NOTE TO TRIAL JUDGES: The suggested directions set out below are given by way of example. Where the prosecution relies on evidence for a tendency purpose, trial judges must formulate careful directions which must be fashioned to address the particular circumstances of the case and must guard against the improper use of tendency evidence and the potential for prejudice which is inherent in such evidence: Rassi v R [2023] NSWCCA 119 at [73]–[74].

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; Uniform Evidence Law (15 ed, 2020) at [EA.98.60] ff; Uniform Evidence in Australia (3 ed, 2020) at 98-1.

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. 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 above at [4-208] Significant probative value — the possibility of collusion, contamination or concoction.

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: s 161A(1) Criminal Procedure Act 1986. However where there is a significant possibility that a jury will rely on the coincidence evidence as being essential to its reasoning in finding guilt, then it will have to be proved beyond reasonable doubt: s 161A(3) Criminal Procedure Act 1986. See Section 161A of the Criminal Procedure Act 1986 at [4-214] Standard of proof.

See the discussion at [4-218] Suggested tendency evidence direction — single complainant — applies to charged acts, other acts or combinations thereof concerning the timing of a direction when such evidence is given.

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] NSWCCA 23 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.

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] NSWCCA 125; 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.

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] NSWCCA 76 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] NSWCCA 95 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 (15 ed, 2020) at [EA.101.150]; Uniform Evidence in Australia (3 ed, 2020) at 59-10.

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] and Uniform Evidence Law (15 ed, 2020) at [EA.101.150]; Uniform Evidence in Australia (3 ed, 2020) at 97-7.

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: