Topic 8 Coincidence and Tendency Notes PDF

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Topic 8 Similar fact evidence Notes Topic Concept Rule/Requirements Case/Statutes Notes

Overview Definition  

Evidence that, on a previous occasion, a person acted in a similar manner to that now alleged in court (i.e. a person has acted in a particular way on another or other occasions) evidence of conduct, character or reputation tendered to prove a ‘tendency’ to act or think in a particular way (i.e. that person has or had a particular state of mind on another or other occasions)

tend towards including, rather than excluding, tendency and coincidence evidence, unlike hearsay and opinion evidence.

UEA defines two separate categories:  

Tendency (previously ‘propensity’ evidence) Coincidence (previously ‘similar fact’ evidence)

Different principles apply to admissibility, but the test is essentially the same.

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Tendency and coincidence evidence are considered to be circumstantial evidence, which is mostly based on facts other than those in issue in proceedings, of which the other parties could be completely unaware.

Notice allows to respond to this type of evidence.

Is about putting people in classes from a propensity perspective i.e. showing by previous conduct that someone is willing to do something that most won’t. e.g. suspect with previous bank robbery history is more likely to be charged with bank robbery than suspect with no previous history – but not because of crim history – will be based on the demonstrated willingness to rob a bank in the first place.

Tendency evidence v coincidence evidence the plaintiffs alleged that the defendant had sent a series of defaming messages via emails displaying similarities in format, style, and errors. Repetitively sending defamation messages allows inferring a tendency to defamation. Similarity in the emails, e.g. writing style, excludes mere coincidence and allows determining the sender. SMEC Holdings v Boniface (2005) NSWSC 1099 shows that, in practice it is difficult to distinguish tendency from coincidence → the regulation of tendency and coincidence in terms of admissibility is the same under sections 97 and 98 of the Evidence Acts → no relevant implications.

Has significant probative value but also is capable of being seriously prejudicial to the accused

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Can arise in criminal and civil proceedings, but gets more of a guernsy in criminal matters e.g. child sexual offence cases where evidence is tendered that the accused has previous convictions for similar offences, including ‘grooming’ offences

Application is normally tendered to establish identity or guilty mind (e.g. used to rebut defences of accident or coincidence), or the actus reus of an offence. Also used in cases where it’s not directly relevant so is then ‘background evidence’:  relationship evidence  res gestae – intimately connected to the event of the charged act. s94 Evidence Act 1995 (NSW)

relationship evidence - evidence which is not being used to prove tendency or coincidence even though it may raise the accused’s past misconduct. Used to explain the conduct of the accused and/or another person (usually the alleged victim) against the background of the incident giving rise to the offence charged. (such as sexual assault cases – previous sexual acts are admitted to establish a sexual relationship between the parties) Requires judge warning against tendency reasoning where there is a real possibility that the jury might use it in that way.

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Is admissible where it assists the jury to understand the context in which the acts occurred BUT only where the probative value outweighs any prejudicial effect

Will be admissible if relevant and if not caught by s135/137. R v Vonarx [1999] 3 VR 618

Toalepai v R [2009] NSWCCA 270

Gipp v R [1998] HCA 21 Different from similar fact evidence because its not about a particular disposition of the accused so it’s not directly relevant

Is about showing the situational context so that the complainant doesn’t look stupid or the offence seem like nothing or completely out of the blue

Not subject to s101 IF used for this purpose only (i.e. not tendency etc)

res gestae - where an incident and the alleged offence form an integral part of the same transaction and the transaction cannot be understood without it and the offence in isolation could only be presented in an unreal and unintelligible form. evidence disclosed a connected series of events that should be considered as one transaction, not as merely showing bad character.

For evidence to be admitted it must not only satisfy the court that the evidence has not been concocted by the maker, it must also be contemporaneous with the transaction and must be a spontaneous reaction. O'Leary v The King (1946) 73 CLR 566

Vocisano v Vocisano (1974) 130 CLR 267

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may satisfy the test of relevance under s55 R v Adam (1999) 106 A Crim R 510

sometimes called background evidence

Does NOT apply to evidence that relates only to the credibility of a witness.

Admissibility

1) does not apply to evidence that relates only to the credibility of a witness. 2) does not apply so far as a proceeding relates to bail or sentencing. 3) 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. s94 Evidence Act 1995 (NSW) e.g. the case of defamation, whereby reputation is part of the probandum (the fact to be proved) and thus directly proved via tendency evidence

Similar fact evidence is INADMISSIBLE unless certain conditions are met.

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s97 Evidence Act 1995 (NSW)

Civil Is more readily admissible in civil cases but litigated less often. Inadmissible UNLESS the evidence will, on its own or having regard to other evidence, have significant probative value.

Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739 Stricter than old common law for civil cases – only needed to be relevant to a fact in issue.

Criminal it can only be admitted if its relevant - has significant probative value AND probative value outweighs any prejudicial effect;

Can be prior convictions or unproven allegations

Common law Makin Test “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 [prejudice].

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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 [probative value]”. Makin v Attorney-General (NSW) [1984] AC 57

Interpretations Above two paragraphs give rise to three different interpretations as concerns the admissibility:

1. Propensity and similar facts evidence should be excluded, save exceptions, such as proving identity and knowledge or intent. 2. Propensity and similar facts evidence should only be admitted if admitted for another purpose (dual purpose). 3. Propensity and similar facts evidence can only be admitted if probative value outweighs prejudicial effect. R v Straffen [1952] 2 QB 911

Hoch v The Queen (1988) 165 CLR 292 and Pfennig v The Queen (1995) 182 CLR 461

TESTS Evidence Act (CURRENT TEST) Whether the tendency or coincidence evidence has significant probative value which substantially outweighs any prejudicial effect it may have on the defendant.

the actual prejudice caused by evidence must be assessed. If evidence satisfies the common law ‘rational inconsistency’ test, it HAS TO outweigh prejudice, otherwise, prejudice must be assessed on a case-by-case basis (the ‘another rational view’ test is too restrictive) R v Ellis [2003] NSWCCA 319

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if evidence satisfies the common law ‘rational inconsistency’ test, it certainly outweighs prejudice, since it basically excludes the possibility of balancing probative value v prejudice

Another rational view test (Pfennig Test) Common Law: Similar fact evidence is only admissible when there is no rational view of the evidence consistent with innocence. (whether there is a rational view of the evidence that is inconsistent with the guilt of the accused)

Where there is a rational view of the evidence consistent with the defendant’s innocence, the probative force of the evidence is automatically outweighed by its prejudicial effect, thus removing any discretion on the part of the trial judge to admit the evidence.

Judge is required to EXCLUDE the evidence if there is a reasonable view of it that is consistent with innocence

Evidence will be admissible if it tends to show the accused is guilty for OTHER reasons i.e. NOT for having a criminal disposition

It’s NOT admissible if it only shows the accused has a propensity to commit a crime or even the type of crime charged. Pfennig v The Queen [1995] HCA 7 (laid down in Hoch v The Queen)

Markby v R (1978) 140 CLR 108

Perry v R (1982) 150 CLR 580

Phillips v The Queen (2006) 158 A Crim R 431

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But it MUST have strong probative value OR it MUST overcome prejudice of mere criminality or propensity

The evidence about one allegation may have probative value in relation to the other because it is improbable that the events were coincidental.

*Probative force and prejudicial effect must also be considered under s101(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. S101(2) Evidence Act 1995 (NSW) Doesn’t apply to tendency or coincidence evidence adduced to explain or contradict evidence adduced by the defendant.

Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion.

R v Blick [2000] NSWCCA 61

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ISSUE – can result in evidence from two witnesses being excluded, because the possibility of concoction is often another rational explanation for the similar evidence AE v R [2008] NSWCCA 52 Burden of proof shifts to Crown to negate this possibility

Relevance ‘striking similarity’ between different offences or between the evidence of different witnesses assists with determining the objective improbability of some event occurring in a way other than has been alleged by the prosecution.

NOT essential prerequisite for admissibility in every case, though (although if it doesn’t have striking similarity, then its unlikely to have the probative value, anyway) Harriman v The Queen (1989) 167 CLR 590

Probative value Lies in the improbability of witnesses giving similar accounts of what happened, unless the events actually happened. - Disputed similar facts = less probative value - Undisputed similar facts = higher probative value

rationale: limiting evidence on facts other than the facts in issue

Significant Probative Value

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Significant = ‘important’ or ‘of consequence’ Probative value = the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

R v PWD [2010] NSWCCA 209  Looks at reliability of the evidence; no need to assume it’s true.  Doesn’t’ need to show any tendency  Is there a risk of an unfair trial

Three factors considered: 1. the cogency of the evidence relating to the conduct of the relevant person 2. the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way 3. the extent to which that tendency increases the likelihood that the fact in issue occurred Jacara v Perpetual Trustees WA (2000) 106 FCR 51

Prejudicial effect The risk that even with proper directions, the jury will improperly use the evidence to come to a wrong conclusion based on the fact that the accused had prior convictions etc. G B F v The Queen [2010] VSCA 135

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Tendency evidence The tendency rule Tendency evidence is evidence ‘of the character, reputation or conduct of a person, or a tendency that a person has or had’, adduced to prove that the 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’ s97(1) Evidence Act 1995 (NSW) Proof by inference that the accused is guilty as charged

Statute (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.

tendency rule is subject to exceptions for character of, and expert opinion about accused persons (s110-111)

(2) Subsection (1) (a) does not apply if: a) the evidence is adduced in accordance with any directions made by the court under section 100, or b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. s97(2) Evidence Act 1995 (NSW)

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examples a statement adduced to prove previous accidents in a civil proceeding for a road accident, tending to prove that the respondent has a tendency to act negligently on the road. A pattern is therefore highlighted to prove consequential behaviour.

emails exchanged with internal and external persons were discovered containing admissions by members of the exporting companies as to copyright infringement. These emails did not contain any explicit statement as to counterfeiting Aristocrat’s machines, but they contained general statements as to counterfeiting machines to be sold in South America.

held that no inference could be developed directly as to counterfeiting Aristocrat machines, but that some inferences could be developed as to the members of the counterfeiting companies, who were held to be: 1. willing to counterfeit poker machine parts; 2. willing to export counterfeited poker machines; and 3. concealing their online discussions. Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) 84 IPR 222 The emails and the practice of moving from emails to an Internet cloud are tendency evidence.

Definition of Person Personal characteristics can be attributed to corporations for the purposes of civil and criminal liability, including knowledge and state of mind,

THEREFORE, CORPORATIONS FALL UNDER THE DEFINITION OF PERSON

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corporations can have semi-anthropomorphic qualities such as reputation, character and tendency. This is, no doubt, because corporations consist of groups of people operating in a habitual way in a given corporate culture. Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Combined Insurance Company of America v Trifunovski (No 4) (2011) FCA 271

Coincidence evidence The coincidence rule Coincidence evidence is evidence that ‘2 or more events occurred’ that is adduced 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 … it is improbable that the events occurred coincidentally’

Operates on the basis that ‘lightning rarely strikes twice’

Statute (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. Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if:

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a) the evidence is adduced in accordance with any directions made by the court under section 100, or b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. s98 Evidence Act 1995 (NSW)

Strikingly similar Can be as simple as an accused possessing stolen property on more than one occasion e.g. from separate robberies: “the characteristic of each event that is strikingly similar is the appellant’s possession of property alleged to have been stolen…”

The similarities can be between the events themselves, OR the circumstances in which they occurred Wallis v Tasmania [2007] TASSC 4

Example a certain number of invoices had poker machine identification numbers; although often belonging to the Aristocrat series, did not match fabrication numbers on the machines. Taken in isolation, such an event could have been attributed to a mistake, but in light of repetition, the coincidence is unlikely to be fortuitous (probability) and thus allows inferring that they are caused by a particular person, having a counterfeiting intent, regardless of the identity of the person involved (for instance, the exporters had invented new serial numbers for exported machines, the exporters counterfeited serial numbers, the exporters counterfeited parts of poker machines …). Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) 84 IPR 222 invoices are evidence of patterns allowing inferences as to a counterfeiting state of mind.

Use of evidence for other purposes

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1) Evidence that under this Part is not admissible to prove a particular matter [tendency or coincidence] must not be used to prove that matter [tendency or coincidence] even if it is relevant [admissible or inadmissible] for another purpose. 2) Evidence that, under this Part cannot be used [s 101] against a party to prove a particular matter [tendency or coincidence], must not be used against the party to prove that matter [tendency or coincidence] EVEN if it is relevant [admissible or inadmissible] for another purpose. s99 Evidence Act 1995 (NSW)

Cornell v Riley (1999) FCA 727

Notice requirements Statute Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

notice should provide...