7. TENDENCY AND COINCIDENCE EVIDENCE
Remember to discuss: is the evidence relevant? s 55
Check: Applies to both civil and criminal proceedings.
*Does the evidence relate only to the credibility of a witness? s 94(1) à YES to any:
✘tendency & coincidence rules do NOT apply
(ie can admit ev).
Does the evidence relate to the character, reputation, conduct or tendency of a person which is a fact in issue? s 94(3)
Is the evidence adduced by Defendant about the character of the Defendant or co-accused persons? ss 110, 111
Bonus mark: s 95
- Tendency/coincidence ev CANNOT be used for other purposes (even if relevant eg character).
o TJ to explain how ev may be used by the jury (ie not for impermissible T/C purposes): s 27 JDA
§ If there’s no way the jury could realise this distinction – should be excluded s 137.
- (reverse of hearsay s 60 / opinion ev s 77 rules permitting dual purposes)
FIRST: Identify the fact in issue (crucial to SPV) à evidence to infer guilt (1) Decide if s 97 tendency or s 98 coincidence
*Touch on BOTH – if obvious, shut one down early.
Tendency = to prove the tendency to act / think a certain way + tendency manifested on this occasion.
Coincidence = to prove an event
If identity is in issue (who did the offending?) If you know the identity of person à tendency ev If you don’t know the identity of the person
(adducing ev of 2 events where we know the ID, but don’t know the ID of the 3rd event) à coincidence Showing a history of D having that character / state
of mind / reputation / consistently acting that way
Showing that the 2 events have similarities to the 3rd event and its improbable it’s a coincidence
TENDENCY – s 97 Check:
- If D wants to adduce good tendency ev to prove innocence (eg good character ev) à can skip s 101 hurdle + but then P can adduce ev to explain/contradict D’s ev without s 101 hurdle (s 101(3)).
[P / D] seeks to adduce tendency evidence of [the person]’s character, reputation, conduct or tendency to prove that s/he has/had a “tendency to act in a particular way / have a particular state of mind”: s 97.
Tendency evidence is not admissible unless the it has significant probative value: s 97(1)(b).
Hughes 2 step approach to assessing the probative value:
1. The extent to which the evidence supports the tendency Clearly identify the specific tendency in the notice: s 97(1)(a)
- “The [evidence of character, reputation, conduct, priors, eg prior 6 complaints about the teacher’s sleazy conduct] shows that [person, eg Def] has a tendency to have [X state of mind, eg a sexual interest in his female students] and looks for / takes opportunities to / is willing to act upon that state of mind by [acting in X way, eg using his power and authority to attempt to have sex with them].”
Tendency must be expressed at a high level of particularity to have SPV (Hughes, McPhillamy)
- If tendency is at a high level of generality – might not establish more than mere relevance (Hughes) o ✘Eg McPhillamy: P tried to later rectify the general tendency with more specificity, but
court wouldn’t consider the rectified tendency bc D wasn’t confronted with it before.
No similarity is required for tendency reasoning: Hughes, confirming Ford, PWD, cf Velkoski.
- Pmt clearly intended to omit reference to “similarity” in s 97.
- Level of similarity between tendency ev & charged conduct will vary depending on the fact in issue.
o A high level of similarity will assist in establishing SPV.
o If proving the identity of offender à need high degree of similarity b/w conduct to be probative.
Evidence needs to demonstrate a particular disposition to commit the crime (Hughes).
- Despite an absence of similarities, a tendency to act in a particular way/have a particular state of mind may be identified with some particular or unusual feature to have SPV (Hughes).
o Evidence AS A WHOLE is capable of proving that the person has the tendency to engage in that type of conduct (eg sexually predatory conduct) or particular state of mind (eg Ellis, BBH).
- A distinctive modus operandi (D’s signature method) will assist in establishing SPV (Ellis, Straffen).
o But not necessary: no modus operandi in Hughes, but still SPV bc of D’s unusual tendencies.
Need some “particular” / “special” feature
✔PWD • While sexual conduct & circs varied: showed Principal’s sexual attraction to young male students + D’s tendency to take sexual advantage of vulnerable homesick boarders.
✔Hughes Multiple Vs
• Wide range of acts & circumstances – forensically broad & different:
- Ages of Vs / workplace witnesses; inconsistent alleged sexual acts
- Locations of offences ranged from kid bedrooms, public areas, TV dressing room.
- (cf Straffen – no ‘underlying unity’, no modus operandi = still capable of SPV)
• Ev as a whole showed H had a tendency to engage in disinhibited, unusually brazen, opportunistic sexually predatory conduct with underaged girls, despite a substantial risk of detection by friends/family (particularity).
(H showing his sexual interest in underaged girls in a variety of ways doesn’t deprive its SPV)
✔RHB Multiple Vs
+ coincidence
Remarkable features:
• Sexual interest & acts against his female lineal descendants (granddaughter + daughter)
• Similar incestual acts (cf AE v R saying that incest is commonplace)
• Occurred when significant risk of detection (adults close by)
✘IMM Single V cf Ô
• Ev of single complainant about a sole uncharged sexual act to prove D’s sexual interest in her ≠ no SPV towards the charged act by itself.
• Evidence of uncharged acts is NOT admissible as tendency in proof of charged acts.
• Require “special features” of V’s account of uncharged acts to give it SPV (cf Bauer).
Cf ✔Bauer Single V
• V’s tendency evidence of D’s (sexual) charged acts and uncharged acts were all against the single complainant à no need for any “special feature” (cf IMM;
Hughes) bc it’s probative of D’s sexual interest in her (proof of his sexual offences).
- Jurors are directed on how to use ev of uncharged acts.
Don’t need similarities, but need some particular disposition
✘McPhillamy • Tendency ev against priest only showed was that D has a sexual interest in young teenage boys. Different circumstances – boarding school bedroom vs public toilets, boarding master vs priest, students vs altar boy. No feature of particularity.
✘Ford • Different natures in the sexual conduct (rape vs indecent assault) deprived it of SPV.
Modus operandi / pattern of conduct – helpful for SPV but not necessary
✔Ellis + coincidence
• Burglary offences all had a distinctive modus operandi of entry: removed glass panels of doors without breaking it & and left the panel in the vicinity = specific tendency.
• Combined this with other stock in trade evidence (eg stole cigs, cash) à SPV.
✔Straffen • 3 murders: V was a young girl, method of killing was manual strangulation, no sexual interference/motive (abnormal), no evidence of a struggle, no attempt to conceal the body (could’ve been easily done) = same specific modus operandi à high SPV.
✔Pfenning • Murder + abduction conviction: both young boys, bike & clothes neatly stacked near the reserve (false trail), appearance of Kombi van = tendency to harm young boys.
• NB: Hoch’s no other rational test abolished by s 393A Crimes Act.
