TENDENCY AND COINCIDENCECLASS 9 28 JULY 2014

DANIEL TYNAN – 12th Floor Wentworth Chambers

Tendency and Coincidence

What is this type of evidence?

• Conduct of the defendant• Proves tendency to act in a particular way• Proves improbability of 2 or more events

• See Odgers’ examples

Dangers this type of evidence

• Reasoning prejudice – Over-estimating the probative value

• Moral prejudice– Jury fails to give the accused the benefit of

reasonable doubt– Outraged by conduct and desire to punish– Jury confusion and misuse of evidence– See Pfennig at [72]

• “psychological studies of decision-making show that where there are gaps in available information decision-makers fill them with reference to preconceptions and stereotypes.”(Fiske and Taylor, Social Cognition, 2nd ed, 1991)

• Bostock study - jurors more likely to convict with recent similar conviction

• Can the risks associated (with the evidence be cured by judicial direction?

Makin v A-G(NSW) [1894] AC 57

What was the evidence the subject of the appeal ?

- Evidence of finding the 12 other bodies in backyards

- Evidence from 5 mothers - they had entrusted the Makins with their baby and had never seen it again

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. “ Lord Herschell

Australian position re admissibility

• EA jurisdictions – ss97, 98, 101• Common law – test in Pfennig

Pfennig v R (1994) HC

• What was the evidence the subject of the appeal?

• Common law test for admissibility of this evidence is

Mason CJ, Deane and Dawson JJ “Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here "rational" must be taken to mean "reasonable“ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.” at [60]

McHugh J

• Why does McHugh J criticise the common law test for the admissibility of similar fact evidence?

• What is McHugh J’s approach to the admissibility of H’s evidence?

The Evidence Act

Sections 94 – 101

94 Application

(1) This Part does not apply to evidence that relates only to the credibility of a witness.

(2) This Part does not apply so far as a proceeding relates to bail or sentencing.

(3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person, or(b) a tendency that a person has or had,if that character, reputation, conduct or tendency is a fact in issue.

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

“significant probative value”

• More than mere relevance but something less than a ‘substantial’ degree of relevance (R v Lockyer)

• Important (R v Lock)• Of consequence (R v Lock)

What factors will determine SPV?

• Number of occasions of conduct• Time gap(s) btwn them• Degree of similarity of conduct• Degree of similarity of circumstances

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

R v Ellis (2003) NSWCCA

• Application of s 101

95 Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

Phillips v R (2006) 158 A Crim R 431

Jacara v Perpetual Trustees WA (2000) 106 FCR 51