8 – TENDENCY & COINCIDENCE EVIDENCE
1. INTRO
SAY: This raises the issue of tendency/coincidence (T&C) evidence, the admissibility of which is governed by Part 3.6 EA.
NOTE: applies in both CIVIL and CRIMINAL proceedings.
NOTE: – Part 3.6 (on TCE) DOES NOT apply to evidence relating solely to credibility of witness (s 94(1))
– Part 3.6 DOES NOT apply to evidence of character, reputation, conduct or tendency if a fact in issue (s 94(3)).
– If evidence deemed inadmissible for tendency purpose, it cannot be used for tendency/coincidence purpose, even if admissible for another purpose (s 95) [e.g. credibility]
2. TENDENCY
SAY to start: [PROSECUTION] will seek to adduce [EVIDENCE OF PRIOR CONVICTIONS/ACTS] to prove that [ACCUSED] has a tendency to [E.G. SEXUALLY ASSAULT X] and that tendency makes it more likely [S/HE] committed the offence charged.
• [ACCUSED] will argue this evidence is inadmissible per s 97(1). HOWEVER à
• [PROSECUTION] would note that such E is admissible where [P] has given notice to [OTHER PARTY] and the evidence has significant probative value (s 97).
STEP 1 – HAS P GIVEN NOTICE? If yes à step 2
Note requirements = Must state specifically and explicitly the details of conduct relied on, time and place, who witnessed
• NOTE: court may dispense with this requirement on application of party (s 100)
• No notice required if E is adduced to explain/contradict tendency evidence of another party (s 97(2)(b)).
STEP 2 – SIGNIFICANT PROBATIVE VALUE (SPV)
Significant: means important or of consequence (Velkoski)
Probative value: is the E is important enough as it substantially affects the assessment of the probability of [FACT IN ISSUE] (EA Dictionary, Part 1)
SAY to start: To find SPV, the E be significant, meaning important, or of consequence (Velkoski), however striking similarities are no longer required (Hughes overruling Velkoski)
Then SAY (tendency only): The assessment of probative value (for tendency) follows a two-step process (Hughes) (ASK):
1. To what extent does the evidence support the tendency?
2. To what extent does the tendency á likelihood of the commission of the offence (tendency to ACT on that interest)? – see McPhillamy.
o If E adduced to prove identity… likely requires a higher degree of similarity (see Straffen).
SAY: To find SPV \, the disputed E should make more likely, to a significant extent, the facts that make up the elements of the offence charged (Hughes, Ford). OTF, E of [X] may have significant probative value in proving [FACT IN ISSUE] given:
Frequency (number of occasions)
• SAY: As the [TENDENCY EVIDENCE] occurred many times, this will suggest that it is more likely that the [CHARGED OFFENCE] was committed by [ACCUSED]
Time gap (time b/w offending/occasions)
• SAY: As the [TENDENCY EVIDENCE] occurred with a [SHORT/LONG] time b/w instances, this makes the [CHARGED OFFENCE] [MORE/LESS] likely to have been committed by [ACCUSED] (McPhillamy (if long)).
o E.G. Didn’t act on supposed tendency for 10 years \ no tendency to act and NO SPV (McPhillamy) Similarities (modus operandi)
• If similar – SAY: Here, [TENDENCY EVIDENCE] is very similar to [OTHER TENDENCY EVIDENCE/CHARGED ACT]
because [APPLY]. This can be analogised to [CASE] where [APPLY].
o Ellis – distinctive modus operandi (e.g. removing glass seals on doors) o RHB – sexual acts against several female descendants
o Other adults close by (RHB) / risk of detection significant (RHB; Hughes) o RHB – relevant to rebut accused’s suggestion of ‘accident’
o Straffen – tendency to strangle young girls with no attempt to conceal the body
o Pfennig – tendency to abduct (van), sex assault, type of victim (young boy) and lay false trail (both).
o Hughes – tendency to act on sexual interest in young girls <16, notwithstanding risk of detection = SPV Unique/peculiar crime
¾ Distinctive modus operandi (e.g. removing glass seals on doors – Ellis)
Evidence of charged/uncharged acts of sexual assault – to prove tendency in charged acts of sexual assault.
¾ SAY: [COMPLAINANT’S] evidence of [ACCUSED’S] uncharged acts of [SEXUAL STUFF] in relation to [C] may be admissible as tendency evidence in proof of [CURRENT SEXUAL OFFENCE] (Bauer, rebutting IMM).
In such cases, tendency E by [C] of both charged and uncharged acts may have significant probative value as the acts may prove [A’s] sexual interest in [C] (Bauer).
8 – TENDENCY & COINCIDENCE EVIDENCE
Here, [UNCHARGED SEX ACTS] (choose one or more):
(a) involve the same complainant; (b) were similar in nature; (c) were similar gravity to one another.
Therefore, this evidence [MAY / MAY NOT] have SPV as it [SHOWS / DOES NOT SHOW] [D] was sexually attracted to [C] making [HIM /HER] more likely to seek to continue in further sexual acts against [C] (Bauer).
Collusion
¾ In case involving multiple Cs, inadmissible if ‘reasonably possible’ that Cs had concocted story, colluded, collaborated (Hoch).
Boardman – Sexual assaults by headmaster against 16 and 17 y.o. boys. Both requested to be passive partner.
• Q – If heard together, is E cross admissible. In one’s guilt, can jury take into account charge against the other?
• HELD: Striking similarity here – improbable that two C would come up with same story unless true = SPV Pfenning – 10 never seen again after speaking to P. P earlier convicted of sexual assault/abduction of 12yr-old boy.
• Connection à Tendency to abduct (van), sexually assault, type of victim (young boy) and lay false trail (both).
Hughes – H engaged in sexual activity w/ underage children. Varied types of offending, often opportunistically.
• HELD: Tendency
P
to act on sexual interest in female children <16, notwithstanding risk of detection = SPV.Straffen – S admitted to strangling girl w/out sexual interference. Later young girl strangled (not raped).
• HELD: Identity case. Tendency P to strangle young girls with no attempt to conceal the body.
Ellis – E charged + convicted w/ break & enters by removing panes of glass w/out breaking anything.
• HELD: Crime committed so distinctively that it’s improbable that different person would’ve committed crime.
IMM – Convicted of sex offences against step-daughter. Tendency E of inappropriate touching of complainant earlier.
• HELD: E didn’t have SPV. E from C adduced to show D’s sexual interest can generally have limited, if any, capacity to rationally affect probability charged offences are true. HOWEVER, this ruling is limited to the facts of IMM.
RHB – Accused charged w/ sex offences against granddaughter. Said accident. Prior convictions against his two daughters.
• HELD: Proven tendency
McPhillamy – M charged w/ sexually assaulting altar boy in 1996. Two former students of M gave evidence he assaulted them in 1985.
• HELD: Evidence of sexual interest is relevant… but then probative value turns to whether there’s tendency to ACT on those interests. Here, no evidence of tendency to act on those interests b/w 1985 and 1995.
• Tendency to ACT on that interest which gives it its probative value
Bauer – 18 sex offences against C b/w 1988-1998. Evidence of uncharged acts against C and charged acts against C’s sister.
