Tendency Evidence Under the Evidence Act: When Is It Admissible in NSW?

What Is Tendency Evidence Under the Evidence Act NSW?

Tendency evidence is evidence used to suggest that, because of a person’s character, reputation, or past conduct, they were more likely to have acted in a particular way or had a particular state of mind on the occasion in question. As a general rule, this evidence is excluded under the Evidence Act 1995 (NSW). It can only be admitted if the court is satisfied that it has significant probative value that outweighs the risk of unfair prejudice to the accused. Our criminal defence team regularly addresses tendency evidence applications under section 97 of the Evidence Act in NSW criminal proceedings.

Why Does This Rule Exist?

The rule exists to prevent a jury from giving undue weight to a person’s past behaviour, reasoning along the lines of “once a thief, always a thief” instead of focusing strictly on the specific conduct alleged in the case before them.

Legal Framework: Part 3.6 of the Evidence Act

Tendency and coincidence evidence are governed by Part 3.6 of the Evidence Act. This part does not apply where the evidence relates only to a witness’s credibility, in proceedings related to bail or sentencing, or where the tendency or conduct itself is a fact directly in issue in the case. For tendency evidence to be admitted, two requirements must be satisfied: the party seeking to rely on it must give the other party reasonable written notice that the evidence will be tendered, and the evidence must have significant probative value that outweighs any risk of unfair prejudice.

The Coincidence Rule (Section 98)

Closely related to tendency evidence is the coincidence rule. This applies where the prosecution seeks to rely on the fact that two or more similar events occurred, arguing it would be an improbable coincidence unless the accused was responsible for all of them. Like tendency evidence, coincidence evidence requires reasonable written notice and must have significant probative value before it can be admitted. The purpose of the rule is the same: preventing a jury from concluding guilt based purely on a pattern of similar events, without a sufficiently strong connection to the accused specifically.

Overlap Between Tendency Evidence and Coincidence Evidence

• Tendency evidence reasons from the person to the act, because of who this person is or what they have done before, they likely did this particular thing.
• Coincidence evidence reasons from a pattern of similar events to the person, because these events are so similar, it is unlikely they are unconnected, and therefore this person was likely behind all of them.

In practice, tendency and coincidence evidence frequently overlap, and prosecutors often rely on both together to strengthen a case. Defending against either requires engaging with the same underlying legal test.

The “Significant Probative Value” Test

The requirement that tendency evidence have significant probative value is the central safeguard under section 97 of the Evidence Act 1995 (NSW). It sets a higher threshold than ordinary relevance and requires the court to be satisfied that the evidence is capable of rationally affecting, to a significant degree, the assessment of the probability of a fact in issue.

As confirmed by the High Court in Hughes v The Queen (2017) and IMM v The Queen (2016), evidence is not admitted merely because it is relevant. It must make a real and substantial contribution to proving the issue in dispute.

Factors Courts Consider When Assessing Probative Value

When determining whether evidence has significant probative value, the court assumes that the evidence is accepted as truthful and reliable. Questions about the credibility or reliability of witnesses are not determined at the admissibility stage (IMM).

In assessing significant probative value, courts commonly consider:

• the degree of similarity between the alleged conduct and the conduct in issue;
• the similarity of the surrounding circumstances;
• the number of similar incidents;
• the time interval between the incidents;
• whether the evidence reveals a distinctive pattern of behaviour or modus operandi;
• whether the tendency is expressed with sufficient specificity;
• whether the evidence logically supports the fact in issue;
• and whether there are plausible alternative explanations consistent with innocence.

As explained in Hughes, similarity is an important consideration but is not a mandatory requirement in every case. The ultimate question is whether the tendency evidence, viewed as a whole, significantly increases the probability of the fact in issue.

The Foundational Requirement: Relevance

Before the tendency or coincidence rules are even engaged, all evidence must first satisfy the basic relevance test under sections 55 and 56 of the Act. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue. Relevant evidence is generally admissible unless excluded by a specific rule, such as the tendency or coincidence provisions, a recognised privilege, or judicial discretion under section 137, which allows a court to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the accused. Relevance under section 55 is necessary to engage sections 97 and 98 at all, but relevance alone is not sufficient, the evidence must go further and meet the higher significant probative value threshold.

Possible Defences Against Tendency or Coincidence Evidence

The most effective way to resist tendency or coincidence evidence being admitted is to directly attack its probative value, including by highlighting:

• Material differences between the prior conduct and the conduct actually charged
• A small number of prior instances, weakening the strength of any inferred pattern
• A significant time gap between the instances relied on
• Genuine alternative explanations for the alleged pattern that are consistent with innocence

Even where evidence technically meets the significant probative value threshold, it can still be excluded under section 137 if its probative value is outweighed by the risk of unfair prejudice to the accused.

Strategic Considerations

Understanding these rules has real strategic consequences in any matter where tendency or coincidence evidence may be relevant:

• Timely notice: Failure to serve proper tendency or coincidence notice typically bars the evidence from being admitted, unless the court grants leave.
• Risk of prejudice: Even technically admissible evidence may still be excluded under section 137 where it carries a real risk of unfair prejudice that outweighs its value.
• Jury directions: Where this evidence is admitted, the judge must direct the jury on its proper and limited use, to prevent the jury from misusing it to infer guilt simply from character or pattern.
• Common contexts: Tendency evidence is most frequently relied on by the prosecution in matters involving sexual offences, fraud, and domestic violence, where a pattern of prior conduct is often central to the prosecution case.
• Defence strategy: Where the prosecution seeks to rely on this evidence, the defence will typically seek to exclude it entirely, or at minimum to limit its scope and the use the jury is permitted to make of it.

The Admissibility Pathway

In practice, tendency and coincidence evidence is assessed through the following pathway:

1. Relevance: Is the evidence relevant under section 55?
2. Tendency or coincidence: Does the evidence seek to prove the accused acted a certain way or had a particular state of mind, based on a tendency, or based on the improbability of similar events coinciding?
3. Notice: Was reasonable written notice given to the other party?
4. Significant probative value: Does the evidence, alone or combined with other evidence, meet the significant probative value threshold under sections 97 or 98?
5. Discretionary exclusion: Even if admissible, does section 137 require exclusion because the probative value is outweighed by unfair prejudice?

This framework also applies, with some differences, in civil proceedings. Our litigation lawyers Sydney handle evidence admissibility arguments in civil trials and appeals as well as criminal matters.

Need Help With Tendency or Coincidence Evidence in Your Matter?

The rules governing tendency and coincidence evidence are complex and strategically critical, mistakes in this area can significantly affect the outcome of a case. Citilawyers can:

• Advise on the precise application of sections 97 and 98 to the evidence in your matter
• Draft and serve compliant tendency or coincidence notices
• Challenge the admissibility of tendency or coincidence evidence proposed by the other side
• Develop strategies to minimise the impact of such evidence where it is admitted

Contact us for strategic advice on your matter.

This article was prepared by the Citilawyers Legal Team, NSW-admitted solicitors based in Sydney CBD. It is general information only and does not constitute legal advice.