Evidence Act NSW: Proven Tendency Evidence

What It Is and How to Get It Admitted in NSW Courts

What Is Tendency Evidence Under the Evidence Act NSW?

Tendency Evidence as the name suggests is evidence used to prove the defendant’s “tendency”. This evidence is excluded by the Evidence Act NSW 1995 but can be admitted if the court thinks that the evidence has significant probative value and outweighs any risk of prejudice. This evidence is about the character, reputation or conduct of the person.

Legal Framework for Tendency Evidence in the NSW Evidence Act

Tendency and Coincidence Evidence are governed by Part 3.6 of the Evidence Act, this part doesn’t apply when the evidence relates only to the credibility of the witness, for proceedings related to bail or sentencing, and doesn’t apply when the character, reputation or conduct of a person or tendency is a fact in issue. For Tendency Evidence to be admitted, the evidence has to cross two burdens, notice has to be given of the other party that the evidence would be tendered and be given sufficiently notice. The evidence must have significant probative value and outweigh any prejudice.

When the Evidence Is Itself a Fact in Issue

It is important to distinguish between character evidence and tendency evidence, usually the character evidence is used to prove that the defendant is a person of good character, and the exclusionary rules such as hearsay, opinion rule and tendency rule, do not apply. This evidence is brought by the defence.

Significant Probative Value Under the Evidence Act 1995

For Tendency Evidence to be admitted, the evidence has to have “significant probative value” that outweighs any prejudice. Significant Probative Value means “something more than mere relevance but something less than a ‘substantial degree of relevance'”. The evidence should add to a significant extent the facts that make up the elements of the offence. Here Significant doesn’t mean “substantial” but does not need to be “important” or of “consequence”. When accounting for probative value of evidence under s 97(1)(b) of the Evidence Act NSW , issues of credibility or reliability should not be taken into account.

The party tendering the evidence needs to prove significant probative value.

The Assessment of the Strength of Tendency Evidence Will Depend On:

Whether it is civil or criminal proceedings – Hughes v The Queen
Is the evidence relevant to the issue – Hughes v The Queen
Number of occasion of the particular conduct – RHB v The Queen
Time gaps between the incidents – McPhillamy v The Queen, R v Watkins [2005] NSWCCA)
The degree of similarity between the conduct – R v Fletcher
The degree of similarity of circumstances in which the conduct took place R v Milton
Whether the tendency evidence is disputed – AE v R

from Odgers, Uniform evidence Law (13th Edition).

Admissibility of Uncharged Acts as Tendency Evidence Under the NSW Evidence Act

In the Queen v Dennis Bauer, the High Court held that accused acts of sexual misconduct that were not charged could be used as Tendency Evidence, whether or not the uncharged act had some special feature IMM v The Queen or exhibit a special, particular or unusual feature Hughes v The Queen.

Possible Defences Against Tendency Evidence

In order to defend against Tendency Evidence to be tendered under the Evidence Act, the best recourse has to be attack the probative value of the evidence. This could be arguing on the differences of the previous cases, the number of instances and the time gaps between them.

Overlap Between Tendency Evidence and Coincidence Evidence

While tendency deals with evidence about the person that is used to establish whether they committed the act and Coincidence evidence deals with the pattern of behaviour to identify whether the person was behind it. Tendency and Coincidence usually overlap and used by the prosecution to strengthen their case under the NSW Evidence Act. Defending Coincidence and Tendency can be significant for the client and require defending the same elements.

Person (character, reputation) → The act (Tendency)

Pattern of Behaviour → The person (Coincidence)