Tendency and coincidence evidence PDF

Preview

Summary

Subject summary: Tendency and coincidence...

Description

Tendency and coincidence evidence: exclusionary rules and conditions for admissibility Evidence Act 1995 (NSW), Sections 94 — 101: Tendency and coincidence Tendency & Coincidence: SUMMARY  For use of tendency/coincidence evidence in civil trials : Sections 97 and 98 See Jacara  For use of tendency/coincidence evidence in criminal trials: In NSW, must apply the s 101 balancing test: Ellis But the Hoch test might still be of some use with multiple complainants: R v AE 

Difference between co-incidence and tendency reasoning Luke Page (a pseudonym) v The Queen [2014] VSCA 357 a. Coincidence reasoning relies on similarities to show the improbability of coincidence b. Tendency reasoning relies on similarities as revealing tendency on part of accused to act in a particular way or have a particular state of mind



Tendency reasoning is using evidence about a particular person to infer the probability that a pattern of behaviour will follow (ie evidence of PERSON to infer BEHAVIOUR). Tendency evidence does not have to establish a tendency to commit the crime; a tendency to act in a manner relevant to the crime, such as use of violence, is sufficient to be described as tendency evidence. Coincidence reasoning is using evidence about a particular pattern of behaviour, or series of events, to infer the probability that a particular person is behind it (ie evidence of BEHAVIOUR to infer PERSON).

 



Person includes a corporation: Trifunovski (No 4) [2011] FCA 271



Tendency reasoning supports narrower range of inferences than coincidence reasoning. TR draws conclusions about a known person; CR can support conclusions about what happened on particular occasions, the causes of an event, the identity of the perpetrator and the tendencies he may have CR is based on events whereas TR can be inferred from character, conduct, reputation or tendencies TR uses evidence about particular person to predict a pattern of future behaviour. CR uses evidence of a particular pattern of behaviour to prove a particular person was behind it

 



Evidence that is neither coincidence or tendency evidence a. Evidence showing opportunity - and thereby rebutting a defence of alibi b. Evidence of other conduct revealing a motive for the crime charged: e.g. previous sexual interest in complainant - held not tendency evidence: used to support an inference that the accused had motivation to act as charged (his passion for complainant). c. Evidence of a system (sometimes) e.g. evidence that a system had been put in place to produce a particular outcome – it may be inferred that the outcome had occurred independently of any established tendency for that outcome to b produced on other occasions. d. Evidence identifying the defendant with the crime charged e.g. evidence which showed that part of the proceeds of a robbery were found at scene of murder, other parts found in possession of the accused. e. Evidence relevant to a person's state of mind: e.g. evidence used to show why accused acted in a certain way towards victim: evidence of victim's violent conduct to show why on the relevant occasion victim felt necessary to act in a particular way. 1

Tendency and Coincidence

f.

Evidence which corroborates the testimony of a complainant: e.g. evidence that accused had previously admitted to some uncharged sexual activity with his daughter is evidence to support, confirm or strengthen other evidence that the defendant committed the offences charged

2 Tendency and Coincidence

TENDENCY 1. Intro 

The may adduce evidence to show that has or had a tendency to act in a particular way, or have a particular state of mind if they are able to show: 1. that the evidence is capable of rationally affecting a fact in issue (s. 55 Evidence Act) 2. reasonable notice in writing of the intention to adduce the evidence has been provided to the other party (s. 97 (1) (a)); 3. the court thinks it would have significant probative value: s. (97(1)(b) Evidence Act) 4. where the evidence is tendered by the prosecution in a criminal trial, to be admissible the probative value of the evidence must substantially outweigh the prejudice to the accused: (s. 101 Evidence Act)



In many instances material might be both tendency and coincidence evidence. For example the facts in Ellis were that a number of break-ins occurred in which a glass pane was carefully removed and placed intact within the shop which was robbed. On the one hand, this material could be regarded as coincidence evidence, because the circumstances of the offences were ‘substantially and relevantly similar’ (s. 98).

2. Relevance 

Such evidence is relevant because it shows that was more likely to have committed the alleged crime, and hence it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding (s 55).

3. General exclusionary rule for tendency evidence (s 97 EA) 

However, the tendency rule under s 97(1) makes evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, inadmissible unless: a. the party has given reasonable notice in writing b. the court thinks that the evidence has significant probative value

4. Exceptions to the exclusionary rule for tendency

  

 

Pursuant to s 97(1)(a), gave reasonable notice in writing to each other party, regarding their intention to adduce the evidence about tendency. Unless this requirement is dispensed of by the court under s 100.

Pursuant to s 97(1)(a), did not give reasonable notice in writing to each other party, regarding their intention to adduce the evidence about tendency. Therefore must apply for an order to dispense with notice under s 100 EA otherwise the evidence will be inadmissible (ES v R 2010).

The second requirement for the admissibility of both tendency and coincidence evidence is that the evidence has a ‘significant probative value’. ‘Probative value’ is defined in the Dictionary to the Evidence Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

3 Tendency and Coincidence

 



 







The word 'significant' used in the phrase 'significant probative value' has been said to mean 'important' or 'of consequence': Regina v Lockyer (1996) 89 A Crim R 457. In Regina v Fletcher Simpson J said that a judge making a ruling under s. 97(1) is required to assess the extent to which the evidence in question has the capacity to rationally affect the probability of the existence of a fact in issue, and then make an assessment and prediction of the probative value which a jury might ascribe to the evidence (at para [33]). The determination of whether or not the evidence has significant probative value involves an assessment and prediction of the probative value that a jury might ascribe to the evidence: Regina v Fletcher at para [33]. Assessment of PV does not involve and assessment of reliability and credibility (IMM) The assessment includes, as per Hughes a. The extent to which the evidence supports the tendency b. The extent to which the tendency supports the proof of a fact in issue that makes up the offence charged Note, held in Hughes that the Victorian approach in Valeski of requiring underlying unity, a pattern of conduct or modus operandi was incorrect. In Hughes the relevant tendency was essentially opportunism towards preying on young girls without regard for being caught. NSW approach was correct, tendency to act a particular way, do not need to show tendency top act closely similar to the acts constituting the charged offence (Ford, Boardman). Thus, conduct need not be identical or particularly similar. However, similarity in the surrounding circumstances may lead to the conclusion that the evidence has significant probative value (Smith; PDW). E.g. IMM the complainant’s evidence of the appellant’s sexual interest in her in the absence of other evidence was not sufficiently probative.



R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court observed at [58] that “the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant”. There “must ordinarily be some feature of or about the offending which links the two together”, “some common feature of or about the offending”, before the requirement of significant probative value will be met.



In cases involving multiple complainants, the judge should also consider whether there is a reasonable possibility of contamination. There has to be a “real” rather than a speculative chance of contamination.16 The Crown must negate such a chance.17 16. BSJ v The Queen [2012] VSCA 93 [21]-[22]; BP v R; R v BP [2010] NSWCCA 303 [110]; PNJ v DPP (2010) 27 VR 146 at 152-3 [24]-[28]. 17. BP v R; R v BP [2010] NSWCCA 303 [110] and the authorities cited thereto.



Evidence relating to ’s could, arguably, rationally affect the assessment of the probability of a fact in issue, being .



RELEVANT CONSIDERATIONS It is apparent that assessment of the strength of the tendency inference will often turn on such considerations as: 1. the nature of the proceedings (Kiefel CJ, Bell, Keane and Edelman JJ explained in Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 that “[t]he capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings”) (Hughest) 4

Tendency and Coincidence

2. the issue to which the evidence is relevant (for example, tendency evidence may have greater probative value in proving conduct than in identifying an offender) (Hughes) 3. whether the tendency sought to be established is a tendency to act in a particular way or to have a particular state of mind (McPhillamy v The Queen) 4. the nature of tendency sought to be established (Anthony v Morton ) 5. the number of occasions of particular conduct relied upon (RHB v The Queen) 6. the time gap(s) between them (McPhillamy v The Queen) 7. the degree of specificity/generality of the conduct/alleged tendency (Townsend, Ibrahim v Pham) 8. the degree of similarity between the conduct on the various occasions (including the conduct sought to be proved) Townsend, R v Eyles) 9. the degree of similarity of the circumstances in which the conduct took place(particularly if it is possible to establish a pattern of behaviour, or even a modus operandi in those circumstances) (R v Fletcher) 10. whether the tendency evidence is disputed (AE v The Queen; Ibrahim v Pham) 11. whether the evidence is adduced to explain or contradict tendency evidence adduced by another party (Jacara) 

Although whether the proceedings are civil or criminal is relevant in this context, it is important to emphasise that this provision does not import the stringency of the common law rules in respect of “similar fact” evidence adduced by the prosecution against a defendant.



Thus, pursuant to s 97 EA, it is likely that the court will similarly deem the tendency evidence as having significant probative value (Ellis 2003).

 

Does the tendency evidence go to a critical fact? – Shepherd Is there a real nexus between the evidence and facts in issue – Jacara



EG Hughes When considered together, “all the tendency evidence provided strong support to show the [defendant’s] tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection”.985 The fact that the defendant’s sexual interest in underage girls was expressed “in a variety of ways did not deprive proof of the tendency of its significant probative value”.986 The tendency was “expressed at a level of particularity” sufficient to give the tendency value”.986

CIVIL CASE Jacara 3 factors: (civil case)  Cogency of evidence o Might dispute cogency of evidence – no proof that he actually killed his previous wife o But here, we are focused more on similarities of surrounding circumstances.  Significance of pattern to fact in issue (recent cases tell us that this is not necessary for 97, but it is desirable. Do not have to show underlying unity of pattern of behaviour – Hugh in BC v R)  Is there real nexus? *NOTE  Significant = evidence that is important or ‘of consequence’ (R v Lock)  Depends on the nature of the facts in issue – the evidence must be influential in context of fact finding (IMM v The Queen)  Relationship evidence is NOT tendency. Not permissible to use evidence of a relationship to show that just because two people had a certain type of relationship that it proves a fact in issue (R v Lock)

5 Tendency and Coincidence

 

  

 







*This is a balancing exercise for criminal and adduced by prosecution ONLY There a number of steps which must be taken by a court in determining whether or not the test under s. 101 is satisfied, noting the Pfennig test will likely no longer apply (Ellis). The court must also undertake a balancing exercise and consider whether the probative value of the evidence being adduced by the prosecution substantially outweighs any prejudicial effect it may have on the defendant (s 101(2)); Ellis) First assess the probative value Secondly identify the prejudicial effect Balance Prejudicial effect 'The danger of unfair prejudice' means that there is a real risk that the evidence will be misused by the jury in some unfair way: Regina v BD Papakosmas v The Queen (1999) Furthermore, the reference to “any prejudicial effect [the evidence] may have on the defendant” is not limited to the potential effect of the evidence on a jury. R v Chase and may include procedural disadvantage flowing from the admission of that evidence in a given case”. For instance where a witness has died or evidence has been destroyed. (DPP (ACT v AL) In the context of tendency evidence, the 'unfair prejudice' is that the ordinary person thinks that when someone with an established tendency to act in a certain way will yield to that tendency whenever the opportunity arises: Regina v AH ; R v Watkins Substantially outweighs What does substantial mean? Perhaps assistance may be derived from the Macquarie Dictionary definition of “substantial”, which includes the meanings “real or actual”, “of ample or considerable amount”, “of real worth or value”. Rothman J concluded at [119] that “substantial” in the context of s 101(2) “is used to mean ‘large, weighty or big’ and indicates an absolute significance”. However, Rothman J was in dissent and the other members of the Court of Criminal Appeal did not address the topic.



As with s 137, the availability of options designed to reduce the risk of unfair prejudice, such as judicial directions to the jury, should be taken into account, although there is no requirement that it be assumed that such options will be successful (R v GAC; Ngatikaura)



On the facts, it is unlikely that the jury would act on the evidence, giving effect to ‘some irrational, emotional or illogical response’ or ‘give the evidence more weight than it truly deserves’ (Suteski 2002). For this reason, the probative value of the evidence likely substantially outweighs any prejudicial effect it may have on the defendant. Thus, pursuant to s 101(2) EA, the prosecutions evidence of the tendency can be used as the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.





What may be prejudicial effect? a. Possibility the jury may punish for conduct not subject to charge b. Possibility that the jury will over estimate the probative value of the evidence c. Jury might unfairly regard evidence that is admissible as rebuttal of coincidence as tendency evidence d. The tendency/coincidence evidence might distract the jury from the central issues at trial e. Such evidence in question might replace the presumption of innocence with a presumption of guilt 6

Tendency and Coincidence

*NOTE  Section 101(3): This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.  A corresponding provision is found in s 98(2)(b)





95 Use of evidence for other purposes a. 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. – evidence relevant/admissible for another purpose must still satisfy tendency rules to be admissible for tendency purpose b. 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. Consider exceptions  S 135 if adduced by defence ONLY  s 136 – general discretion to limit the use of evidence  s 137 – exclusion of prejudicial evidence in criminal proceedings *NOTE: if adduced by prosecution do not ask court to exclude evidence under s 135(1)(a) EA, as evidence has gone through s 101 EA (which is a higher threshold than s 135 EA). You may still try and exclude evidence under s 135(1)(b) or (c) EA. 

The provisions of s 137 of the Uniform Laws can be employed as the basis for a defence application for this evidence to be excluded because its relevance is exceeded by its potential prejudicial nature, and/or its tendency to mislead the tribunal of fact

IF ADMISSIBLE Defence may consider making a request for a warning to be given to the jury – s 165



Therefore, as has complied with both s 97(1)(a) and s 97(1)(b) as well as s 101(2) EA, tendency to act in a particular way, or to have a particular state of mind is admissible.

7 Tendency and Coincidence

COINCIDENCE *NOTE: Run through these 6 steps: 1. Identify the particular act or state mind of the person sought to be proved by the evidence 2. Identify the 2 or more events the occurrence of which is used to prove the person did a particular act or had a particular state of mind; 3. Identify the similarities in the events or circumstances for the purpose of ascertaining the improbability of the coincidence (consider the dissimilarities as well); 4. Determine whether reasonable notice has been given; 5. Evaluative whether the evidence has significant probative value (SPV); 6. If there is SPV determine whether the probative value substantially outweighs any prejudicial effect (s 101 EA) 

Examples of Coincidence Reasoning a. A number of persons have been poisoned, and the victims have all been associated with the D. Evidence of other poisonings may support the inference that D was responsible because it would be contrary to normal experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in D’s circle of associates b. Striking similarities between two incidents in which D was involved (the first involving some uncertainty as to what occurred, the second being uncertain only as to D's mental state) may permit inferences as to what happened during the first and D's state of mind in the second. c. Similarities in the accounts of two witnesses re D's conduct may make it improbable that the witnesses are lying (in absence of concoction) (though relevant to credibility, such evidence is not relevant only because it relates to credibility per s 94(1)).

1. Intro 

T...