Evidence of Tendency and Coincidence

General

When introducing evidence in court proceedings, the parties needs to be aware of the rules stated in the Evidence Act 1995 which establishes the foundation when determining whether particular evidence is admissible.

Section 97 of the Evidence Act stipulates the “tendency rule”, which means that evidence or the character, reputation or conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind. The evidence may be considered admissible if the party, seeking to adduce the evidence in the proceedings, gives the other party reasonable notice in writing of the intention to adduce the evidence and if the court believes that the evidence will have a “significant probative value” in the matter.

Section 98 of the Evidence Act states the “coincidence rule,” which means that evidence of the character that two or more events have occurred is not admissible to prove that a person did or had a particular state of mind to act in a certain way. Similar to Section 97, a party may adduce the evidence, if the other party is notified in writing of the usage of evidence, and the court is of the opinion that the evidence have “significant probative value”.

The “tendency” and “coincidence rules” regulates how to interpret a person’s previous actions and how to determine if the evidence is to be considered as admissible evidence to prove that the person has acted with a particular state of mind. However it is a challenge to determine which evidence is to be considered to have a “significant probative value”.

The Tendency Rule

The judge needs to be careful in determining whether evidence is to be considered as admissible under the tendency and coincidence rules. Generally, evidence is not excluded because of its irrelevance but because a jury might regard the evidence as proving too much because of the reliance upon prejudice rather than actual proof, as observed in Harriman v The Queen, at 597.

When determining the admissibility of evidence, the court must consider whether the evidence has a “significant probative value” in the proceedings. Evidence might be considered having a sufficiently high probative value to be admissible even though it relies on prejudice.

What determines if evidence have “significant probative value”? In Zaknic Pty Ltd v Svelte Corporation Pty Ltd it was pointed out that more is required than mere statutory relevance when determining “significant probative value”. There has to be a degree and value judgement, which considers the evidence to be adduced and future evidence to be adduced. The probative value of a matter depend on the specific circumstances of the event.

A test needs to be applied on each case which takes into account the relevance of the evidence. If the evidence was to be accepted, would it directly or indirectly, rationally affect the probability of the existence of a fact? Evidence should not be considered as irrelevant because it only relates to the credibility of a witness, the admissibility of other evidence or a failure to adduce evidence (Evidence Act 1995 – Sect 55).

Other variables to consider are; the strength of the evidence in relation to the behaviour of the person committing the acts, the power of inference made from the evidence as to the tendency of the person to act in a specific way and in what way the tendency increases the likelihood of the act occurring; cf J D Heydon, Cross on Evidence (6th Aust ed, 2000) at pars [21095], [21100], [21105].

The Coincidence Rule

When determining whether or not evidence is to be considered as coincidence evidence, the judge must determine if the evidence could rationally affect the likelihood of a fact to exist and evaluate if the jury may consider the evidence to have significant probative value, when considering anticipated evidence and evidence already adduced; Lockyer (1996) 89 A Crim R 457).

The evidence needs to be relevant, pursuant to the Evidence Act 1995 – Sect 55 and 56, to be admissible in the proceedings.

It has also to be determined whether the evidence has a “significant probative value”. The same test of relevance, as explained for the tendency rule above, needs to be made. The party that want to adduce the evidence also has to notify the other party of the intention to rely on the evidence in court.

If there are any other alternative explanations for the actions that implies innocence, the evidence is not to the considered as important in proving a fact.

Summary

The evaluation if evidence is to be considered as admissible in proceedings is similar under the tendency and coincidence rules. The evidence has to be relevant, to be admissible in the proceedings and the party wanting to adduce evidence needs to notify the other party of the intention. It is ultimately the judge and jury that determine if the evidence has “significant probative value”.

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