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] NSWCCA 519.

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 (unrep, 2/12/97, NSWCCA) (non-consent of complainant).

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] NSWCCA 272 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.

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] NSWCCA 248 at [147]–[150]; R v Jiang [2010] NSWCCA 277 at [44].

At the time tendency and/or coincidence evidence is adduced, consideration should be given to directing the jury as to the permissible use of the evidence and warning them against its misuse, particularly where they may wonder about the purpose of such evidence, for example, if it is not the subject of a charge in the indictment: Qualtieri v R [2006] NSWCCA 95 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] 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.

[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 I explain to you the relevance of this evidence. 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.

[Outline the Crown’s submission of the issue/s justifying 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 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 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 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 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 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 [him/her] 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] and Uniform Evidence Law (15 ed, 2020) at [EA.101.150]; Uniform Evidence in Australia (3 ed, 2020) 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] NSWSC 999; 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] NSWCCA 519, 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 (or a course of conduct) can be admissible even though revealing misconduct by the accused. Transactional evidence is distinguishable from tendency evidence and evidence proving an accused had a continuing state of mind: Haines v R [2018] NSWCCA 269 at [219], [224]–[226]. It will be admissible whether it occurred before or after the alleged offence: R v Mostyn [2004] NSWCCA 97 at [119]; Haines v R at [224]. 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 King (1946) 73 CLR 566; Haines v R [2018] NSWCCA 269.

  • 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] NSWCCA 189 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] NSWCCA 256 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 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 the evidence is before you and you cannot use it for any other purpose. Whether you give it the significance 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 [him/her] 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] NSWCCA 190 at [128], Bryant v R [2011] NSWCCA 26 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) 266 CLR 56; IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen (2017) 263 CLR 338. Tendency evidence should be distinguished from coincidence evidence: R v Nassif [2004] NSWCCA 433.

See generally Criminal Practice and Procedure at [3-s.94.1]ff; Uniform Evidence Law at [EA.96.30]ff; Uniform Evidence in Australia (3 ed, 2020) at Pt 3.6-1ff.

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

The following discussion of the caselaw must be read with the terms of s 94(4) in mind. Taylor v R [2020] NSWCCA 355 contains a useful summary of the caselaw: at [94]–[122].

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].

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. 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].

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) 263 CLR 338 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) 266 CLR 56 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. 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 (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] NSWCCA 330 at [189]–[193]. In Hughes v The Queen (2017) 263 CLR 338 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] NSWCCA 327 at [107]–[110]; Mol v R at [36].

Concoction and contamination

Section 94(5) of the Act, which took effect on 1 July 2020, 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 (2018) 266 CLR 56 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. The Second Reading Speech of the Attorney General (Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1917) included: “Proposed section 94(5) … closes that small gap left open by the courts …”.

[4-226] Standard of proof — s 161A Criminal Procedure Act 1986

Section 161A of the Criminal Procedure Act 1986 was inserted by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 and took effect on 1 March 2021: s 2, Stronger Communities Legislation Amendment (Miscellaneous) Act.

Section 161A(1) states that when evidence is adduced as tendency or coincidence evidence, the jury must not be directed that evidence needs to be proved beyond reasonable doubt. The only exception is provided for in s 161A(3) when the case is one where there is a significant possibility the jury will rely on that evidence as being essential to its reasoning in reaching a finding of guilt: see Shepherd v The Queen (1990) 170 CLR 573; The Queen v Bauer at [86]. Such cases are likely to be rare. An example is Adams v R [2017] NSWCCA 215.

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. Alternatively, it may be given shortly after directions concerning the drawing of inferences. The timing may vary depending on the issues in the particular trial.

The suggested direction at [4-227] is based on the text of s 161A and without the benefit of any appellate consideration of its terms. The lack of appellate authority at the time of drafting, or practical experience in the application of s 161A, should be borne in mind when applying the suggested direction. In addition, as with all suggested directions, the direction will require adaptation to suit the evidence and issues arising in the case at hand.

In BRC v R [2020] NSWCCA 176, it was held that a warning a jury should not reason that because the accused had committed one or more other acts relied upon to establish a tendency the accused was a person of “bad character” may negate a tendency direction: Simpson AJA at [72]; Hamill J similarly at [96]. It was also held that a warning the jury “cannot punish” an accused for conduct the subject of other charges in the indictment would be inapposite: Simpson AJA at [74]. Hamill J likened this to a “no substitution” warning and agreed it was only apposite in respect of uncharged conduct: at [103], [105].

[4-227] Suggested tendency evidence direction — applies to charged acts, other acts or combinations thereof

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 by directing as to that standard of proof where the exception in s 161A(3) applies.

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.

Part of the Crown case is that the accused had a tendency to [short description of the tendency].

The Crown says you would be satisfied the accused had this tendency because of [his/her] conduct in [describe the conduct relied upon by the Crown, be it the subject of counts in the indictment, or not, or both].

The Crown says this conduct reveals the accused had a tendency to [short description of the tendency] which makes it more likely [he/she] committed the offence(s) charged in the indictment.

You will need to consider the evidence relating to this alleged conduct of the accused and decide whether [he/she] did in fact conduct [him/herself] in the way the Crown alleges. In doing so, you do not consider each of the acts in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred.

If you decide that all, or at least some, of the conduct occurred, you then need to consider whether it enables the inference to be drawn that the accused had the tendency to [short description of the tendency].

You will recall the direction I gave to you about the care that needs to be applied to the drawing of inferences. I directed you to consider whether there might be alternative explanations for the evidence. I directed you that you should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. You should bear in mind those directions when you are considering this part of the evidence.

If you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances, you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown’s case.

If you find the accused did [short description of the tendency], then you can use that in considering whether it is more likely [he/she] committed the specific offences with which [he/she] is charged. However, it is essential you consider in relation to each charge whether the accused [acted in that particular way/had that particular state of mind] on that specific occasion.

Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted [him/herself] in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way the accused’s tendency to [short description of the tendency] may be used.

Ultimately, you must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, provided you are satisfied it has been established. It will also include [briefly describe other categories of evidence that are relied upon].

When considering whether a charge has been proved, you will have to decide whether the Crown has proved the essential elements of that charge. Shortly I will be telling you what those essential elements are for each of the charges.

[Add, if appropriate — usually where the conduct relied upon is not the subject of a count in the indictment: In directing you that the tendency evidence cannot be used other than in the way I have described, part of what I am saying is that you must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.]

[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 behaved. You must be careful to avoid allowing any emotional response or prejudice to distract you from a calm and objective assessment of this issue.]

[Add, if appropriate: Some of the evidence before you that is relied upon by the Crown to prove the tendency alleged concerns incidents that are not the subject of any charge in the indictment. If you are not satisfied that an incident that is not the subject of a charge occurred, then the evidence relating to it should be put completely aside. There is no other issue in the case to which it is relevant.]

I will now summarise the case for the Crown and the case for the accused on this issue of tendency.

The Crown argues [summarise arguments as to how the conduct is said to establish the tendency and how the tendency is said to be relevant in proving the charges].

The defence argues [summarise the counter arguments].

[4-230] Tendency evidence in child sexual assault proceedings — s 97A

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

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):

(a) 

the sexual interest the defendant has or had in children (regardless of whether they have acted on the interest)

(b) 

the defendant acting on a sexual interest they have or had in children.

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:

(a) 

the tendency sexual interest or act is different from the sexual interest or act alleged in the proceeding

(b) 

the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred

(c) 

the personal characteristics of the subject of the tendency sexual interest or act (for example their age, sex or gender) are different to those of the subject of the alleged sexual interest or act

(d) 

the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act

(e) 

the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,

(f) 

the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features

(g) 

the level of generality of the tendency to which the tendency evidence relates.

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

such grounds should be considered in light of the objective of this reform to facilitate greater admissibility of tendency evidence and, specifically, the intent of the proposed section 97A to facilitate greater admission of tendency evidence in child sexual offences.

And of the latter:

The threshold of exceptional circumstances … was chosen intentionally … to set a high bar. Further, it is intended that the exceptional circumstances must relate to those specific matters [identified in s 97A(5)], either individually or [in] combination, rather than relating to any other aspects of a particular matter. Matters outside those specifically enumerated in [s 97A(5)] should not be taken into account … to determine whether the exceptional circumstances threshold has been met.

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

(a) 

The requirement to give notice was considered in R v Zhang [2005] NSWCCA 437 at [131] and Bryant v R [2011] NSWCCA 26. 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. 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: 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 [4-226] Standard of proof — s 161A Criminal Procedure Act 1986.

See the discussion at [4-200] Introduction 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.

As should be apparent to you, the accused is charged only with the offence/s stated in the indictment. You have before you evidence the Crown relies upon as establishing [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 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 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 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 an accused person committed the act (or had the state of mind) the subject of the charges.

In this case, the Crown says that, provided you are satisfied 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 it is highly improbable 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 [him/her] 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] 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.

On the indictment there are 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 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 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 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 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.