The Tendency Rule and Evidence Admissibility (Section 97)
The tendency rule provides that evidence of a person’s character, reputation, conduct, or tendency is not admissible to prove they acted in a specific way or had a particular state of mind on a particular occasion, based solely on that tendency.
Why Does This Rule Exist?
Its purpose is to prevent a jury from giving undue weight to a person’s past behaviour (“once a thief, always a thief”) instead of focusing on the specific alleged conduct in question.
When is Tendency Evidence Admissible?
Despite the general prohibition, evidence admissibility for tendency evidence is permitted if:
Notice is Given: Reasonable written notice is served on all parties.
Significant Probative Value: The court is satisfied the evidence could substantially influence the assessment of a key fact in issue.
Purpose of the Rule: To protect the accused from being unfairly prejudiced by prior acts or general character assumptions.
The Coincidence Rule and Evidence Admissibility (Section 98)
The coincidence rule addresses situations where multiple similar events occur. The rule states that evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind because of the improbability of the events coinciding.
When is Coincidence Evidence Admissible?
Evidence admissibility for coincidence evidence requires:
Notice is Given: The party seeking to introduce the coincidence evidence gives the other party (or parties) reasonable written notice of their intention; and
Significant Probative Value: The court is satisfied that the evidence has significant probative value.
Purpose of the Rule: It prevents a jury from concluding guilt based only on the similarity of events, without a sufficiently strong connection to the accused.
The “Significant Probative Value” Test for Evidence Admissibility
This is the central test for determining evidence admissibility for both tendency and coincidence evidence under sections 97 and 98. It’s a higher bar than basic relevance.
What Does “Significant Probative Value” Mean?
Evidence has “significant probative value” if it could rationally affect (to a significant degree) the assessment of the probability of a fact in issue in the proceeding (as clarified in cases like Hughes v The Queen (2017) and IMM v The Queen (2016)). This means it must be more than merely relevant; it requires a substantially higher degree of relevance than the basic relevance test (as per Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995)).
Factors Courts Consider for Evidence Admissibility
When assessing evidence admissibility through “significant probative value,” a judge will look at various factors, including:
- The similarity and number of the events or acts (especially for coincidence evidence), or the specificity of the tendency
- The temporal proximity of the events or acts (how close in time they occurred)
- The strength of the inference the evidence supports (does it strongly point to the accused’s involvement or state of mind?)
- The extent to which the evidence supports the specific fact in issue (e.g., identity, intent, modus operandi)
- Whether the evidence explains otherwise inexplicable aspects of the alleged offence
- The context of the entire case, including evidence already presented or anticipated
- The presence of plausible alternative explanations that might suggest innocence
The Judge’s Gatekeeper Role
The judge plays a crucial role as a “gatekeeper,” rigorously assessing whether evidence admissibility meets this “significant probative value” threshold before it is presented to the jury (Harriman v The Queen (1989)). This prevents the jury from being unduly swayed by potentially prejudicial material.
The Foundational Requirement for Evidence Admissibility: Relevance (Sections 55 & 56)
Before applying the tendency or coincidence rules, all evidence must first pass the basic test of relevance for evidence admissibility.
Basic Relevance Test
Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue (Section 55(1)).
General Evidence Admissibility
Relevant evidence is generally admissible (Section 56(1)), unless it is excluded by a specific rule (like Sections 97 or 98), a privilege, or judicial discretion (e.g., if its probative value is outweighed by unfair prejudice under Section 137).
It’s important to remember that while evidence must be relevant under Section 55 to engage the tendency or coincidence rules, relevance alone is not enough for evidence admissibility, it must also meet the higher “significant probative value” threshold.
Key Considerations
Understanding these evidence admissibility rules has significant strategic implications for any litigation:
- Timely Notice: Failure to serve proper tendency or coincidence notices typically bars evidence admissibility, unless leave is granted.
- Risk of Prejudice: Even admissible evidence may be excluded under section 137 if it carries a real risk of unfair prejudice.
- Jury Directions: Judges must instruct juries on how to properly use (and not misuse) tendency or coincidence evidence.
- Prosecutorial Advantage: Tendency evidence is commonly used in child sexual assault, fraud, and domestic violence matters.
- Defence Strategy: The defence will often seek to exclude such evidence or at least limit its impact and scope.Prosecutorial Advantage: Tendency evidence is commonly used in child sexual assault, fraud, and domestic violence matters.
- Defence Strategy: The defence will often seek to exclude such evidence or at least limit its impact and scope.
Summary: The Evidence Admissibility Pathway
For tendency or coincidence evidence admissibility to be achieved, it typically follows this pathway:
- Relevance: Is the evidence relevant under Section 55?
- Tendency/Coincidence: Does the evidence seek to prove a person acted in a certain way or had a particular state of mind based on a tendency or the improbability of coincidence?
- Notice: Was reasonable written notice given to the other party?
- Significant Probative Value: Does the evidence (alone or with other evidence) have significant probative value as defined by Sections 97/98 and relevant case law?
- Discretionary Exclusion (s 137): Even if admissible under Sections 97/98, does its probative value outweigh the danger of unfair prejudice?
Need Legal Advice on Evidence Admissibility?
The rules governing tendency and coincidence evidence are complex and strategically critical. Mistakes in this area can significantly impact your case and its outcome. Citilawyers’ team can provide the guidance you need:
- Advise on the precise application of Sections 97 and 98 to your specific evidence.
- Draft & Serve compliant tendency and coincidence notices.
- Challenge the admissibility of proposed tendency or coincidence evidence from the opposing side.
- Develop strategies to counter or minimise the impact of such evidence in court.
Don’t leave critical evidence rulings to chance.
Contact Citilawyers today for strategic advice tailored to your proceedings.
