Sections 94-101                

PART 3.6 – Tendency and Coincidence

Section 95: Use of Evidence for Other Purposes


AH
(1997) 42 NSWLR 702 (NSW CCA)
Evidence Act 1995 (NSW) s.95 - sexual offences on niece - evidence of sexual relationship other than that charged in indictment allowed
Held: once evidence has been admitted it cannot be used as tendency evidence unless it complies with s.97 and s.101 guidelines

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.95 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help.
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Gilbert
NSW CCA 10.12.1998
Evidence Act 1995 (NSW) s.95
Held: need direction that evidence admitted to show relationship should not be used to demonstrate propensity to offend.
Veitch
NSW CCA [185] 14.7.1999
Evidence Act 1995 (NSW) s.95 - sexual offences on stepson - led evidence of other occasions of sexual abuse.
Held: Crown did not make clear whether evidence of other sexual acts led as relationship evidence or guilty passion - no explanation to jury of limitations of evidence or meaning of “guilty passion” - judge did not give appropriate directions as to purpose evidence could be put - appeal allowed.

Patsalis & Spathis [No. 4]
NSWSC [715] Kirby J 20.7.1999
Evidence Act 1995 s.95 - murder - P gave police handwritten statement “explaining” his role in murder - statement contained reference to two episodes of possible criminal behaviour on the part of P - obtained money from S by false representation - Crown seeking to rely upon statement.
Held: admissible as relationship evidence and evidence of possible motive - will need warning under s.136(a) as to relevance and use of evidence.

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 s.95 - attempt obtain possession commercial quantity of heroin - Crown led evidence that appellant a prisoner on work release at time of offence to rebut appellant’s claim he was simply doing a favour for a friend and had no knowledge of drugs.
Held: evidence not adduced for purpose of showing tendency - irrelevant that effect of evidence was to show tendency of appellant to commit offences.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) s.95 - murder of wife - arranged for two co-offenders to kill wife by heroin overdose - motivated by custody dispute over son - Crown led evidence appellant had put heroin in V’s coffee cup week before murder - evidence came from statements made by V to neighbour, friend and police officer - inference that heroin put in coffee cup to make it look like V used heroin - attempting to make death look like suicide.
Held: no inflexible rule that where relationship evidence led there must be a direction that evidence not to be used as evidence of tendency to commit offences.

MM
(2000) 112 A Crim R 519; NSW CCA [78] 24.5.2000
Evidence Act 1995 s.95 - sexual offences against young male - evidence of uncharged acts relied upon by Crown to prove propensity to commit offence.
Held: allowing appeal - judge needed to direct jury they cannot use evidence to show propensity unless proved beyond reasonable doubt - needed to identify relevant evidence to jury.


 

Section 97: The tendency rule


Lewis
NSWSC (Dowd J) 24.6.1997
Evidence Act 1995 (NSW) s.97 - application by defence to tender photographs of witness wearing sheath knife - attempt to show witness had tendency to carry knife as member of motor cycle club
Held: evidence allowed

Lockyer
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.97 - murder of young child - accused sought to show reasonable possibility mother killed baby - sought to show reasonable possibility mother responsible for previous injuries to child.
Held: “significant probative value” means ‘important’ or ‘of consequence’ - significance of tendency evidence depends upon nature of the fact in issue to which it is relevant and the importance that evidence may have in establishing that fact - evidence admissible

Hancock
NSW CCA 21.11.1996
Evidence Act 1995 (NSW) s.97 - AOABH - cross-examined complainant about previous incident where complainant attacked man with hammer - relevant to self defence - Crown granted leave to cross-examine appellant on criminal record under s.104 - evidence dealt with solely as going to credit
Held: evidence of appellant’s criminal record was clearly tendency evidence and therefore had to satisfy the conditions of s.97 and 101 - substantial prejudice to appellant - evidence should have been excluded

Huang-Tung, Tam & Kuan
NSWSC (Barr J) 25.2.1997
Evidence Act 1995 (NSW) s.97 - drug importation - drugs sealed in plastic bags secreted in base of painting - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - Asian males receiving crates with Chinese glass-framed paintings
Held evidence admitted - significant probative value substantially outweighing any prejudicial effect

Lock
(1997) 91 A Crim R 356; NSWSC (Hunt CJ at CL)
Evidence Act 1995 (NSW) s.97 - stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbings of victim by accused.
Held: evidence not admissible as tendency evidence (although admitted as relationship evidence) - “significant probative value” means more than mere relevance but something less than substantial degree of relevance - important, of consequence.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.97 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.97 - importation of drugs - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting the presence of the two co-accused in Sydney on previous four occasions
Held: evidence admitted - significant probative value substantially outweighing any prejudicial effect

Fowler
NSWSC (Dowd J) 15.5.1997
Evidence Act 1995 (NSW) s.97 - application by defence to cross-examine Crown witness as to violent disposition of witness, criminal history of witness after murder and tendency of witness to influence jurors and other witnesses.
Held: leave granted to cross-examine as to tendency.

Gabriel v The Queen
Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.97 - street fight resulted in stabbing of V - evidence given by witness that accused had told him he intended to do a robbery that day - Crown referred to proposed evidence in opening statement
Held: evidence breached s.97 and 101 - no probative value - evidence should not have admitted - could not be corrected by a direction to the jury.

AH
(1997) 42 NSWLR 702; NSW CCA 27.11.1997
Evidence Act 1995 (NSW) s.97 - sexual offences on niece - evidence of sexual relationship other than that charged in indictment allowed
Held: if evidence introduced as relationship evidence s.97 and s101 irrelevant - once evidence has been admitted it cannot be used as tendency evidence unless it complies with s.97 and s.101 guidelines - if evidence to be used to show guilty passion must comply with s.97 and s.101 - evidence must have significant probative value that substantially outweighs danger of prejudice - there must be no reasonable view consistent with innocence (Pfenning 182 CLR 461 at 483-4, 485)

Fordham
98 A Crim R 359; NSW CCA 2.12.1997
Evidence Act 1995 (NSW) s.97 - sexual offences on 55y complainant, mildly intellectually disabled - evidence of complainant as to violence inflicted by appellant before and after offences - evidence that violence an integral part of relationship.
Held: evidence admissible to show nature of relationship, lack of consent and knowledge of accused as to lack of consent - fact that some violence occurred after offences goes only to weight.

Osman
NSW CCA 10.3.1998
Evidence Act 1995 (NSW) s.97 - aggravated sexual assault on de facto - defence refused leave to lead evidence from witness that complainant had previously acted in aggressive manner towards the appellant.
Held: evidence wrongly excluded - critical issue was consent - evidence as to relationship crucial - significant probative value and would not have been excluded under s.97 - followed Lock 91 A Crim R 356 at 360-1

Gipp
(1998) 194 CLR 106; 72 ALJR 1012
Queensland case - sexual assault on step daughter - evidence of sexual abuse not subject of indictment - Judge directed jury they did not need to satisfied of this evidence beyond reasonable doubt
Held: (allowing appeal by majority) - judge gave inadequate and inappropriate warning as to dangers of such evidence.
Held: lack of common agreement as to admissibility of evidence
(McHugh & Hayne JJ) - evidence correctly admitted to place relationship in context and did not go to tendency (guilty passion)
(Kirby J) - evidence admissible as ‘tendency evidence’ only if probative value outweighs danger of prejudice.
(Callinan J) - evidence was propensity evidence and should not be led as “background” evidence
(Gaudron J) - evidence inadmissible unless admitted to rebut subsidiary issue raised by accused

Fraser
NSW CCA 10.8.1998
Evidence Act 1995 (NSW) s.97(1) - sexual assault - Crown led evidence of sexual acts not subject of indictment - some acts alleged to have taken place some years after indictment offences when complainant was an adult.
Held: Gipp did not change law in this state - still follow AH (1997) 42 NSWLR 702, Beserick (1993) 30 NSWLR 510, Wickham NSW CCA 17.12.1991 and B (1992) 175 CLR 599 - later sexual acts too remote to show either relationship or guilty passion - earlier sexual acts admissible to put relationship in context and show guilty passion and to rebut issues raised by accused.
Greenham
NSW CCA [8] 8.3.1999
Evidence Act 1995 (NSW) s.97(1) - aggravated indecent assault of 13y complainant - complainant gave evidence of sexual impropriety other than that charged.
Held: evidence may be admissible to place acts charged in context and demonstrate guilty passion by accused for complainant - if led to demonstrate guilty passion, it is tendency evidence which must meet tests in s97(1) and s.101(2) - must also consider s.409B(3) Crimes Act and s.136 and 137.

BDF
NSW CCA [98] 6.5.1999
Evidence Act 1995 (NSW) s.97 - child sexual assault
Held: evidence by complainant’s mother that accused would often walk naked around house not tendency evidence and admissible.

Veitch
NSW CCA [185] 14.7.1999
Evidence Act 1995 (NSW) s.97 - sexual offences on stepson - led evidence of other occasions of sexual abuse.
Held: Crown did not make clear whether evidence of other sexual acts led as relationship evidence or guilty passion - no explanation to jury of limitations of evidence or meaning of “guilty passion” - judge did not give appropriate directions as to purpose evidence could be put - appeal allowed.

Patsalis & Spathis [No. 4]
NSWSC [715] Kirby J 20.7.1999
Evidence Act 1995 - s.97 - murder - P gave police handwritten statement “explaining” his role in murder - statement contained reference to two episodes of possible criminal behaviour on the part of P - obtained money from S by false representation - Crown seeking to rely upon statement.
Held: evidence does not satisfy tendency requirements under s.97 - admissible for other purposes - admissible as relationship evidence giving jury full understanding of circumstances surrounding killing - also admissible as evidence of possible motive - do not have to satisfy test of Pfennig that evidence must be consistent only with guilt of accused - will need warning under s.136(a) as to relevance and use of evidence.
 
Adam
NSW CCA [189] 23.7.1999; 106 A Crim R 510
Evidence Act 1995 (NSW) s.97 - maliciously inflict grievous bodily harm – police officer murdered outside hotel - evidence accused had been staring at patron of hotel prior to assault on victim admitted.
Held: O’Leary v The King (1946) 73 CLR 566 principle has not abolished by Evidence Act - evidence admissible as conduct by accused forming integral part of “transaction” consisting of connected events - conduct falling within O’Leary is not evidence showing particular disposition or propensity.
 
Colby
NSW CCA [261] 26.8.1999
Evidence Act 1995 - ss.97, 98 - aggravated sexual assault - victim alleged appellant committed frequent and unusual sexual acts - Crown relied on evidence from appellant’s three former wives that appellant engaged in frequent and unusual sexual acts as tendency or coincidence evidence.
Held: admissible as tendency evidence (s.97) and to rebut co-incidence (s.98) - similarities between evidence of wives and complainant significant - Hoch should be applied where Crown relies on evidence to establish tendency or rebut coincidence - if reasonable possibility of concoction evidence must be rejected because risk deprives evidence of its significant probative value, regardless of its substantial and relevant similarity - in this case no real chance of concoction - evidence properly admitted.

Phillips
NSWSC (Bell J) [1175] 17.12.1999
Evidence Act 1995 - ss.97, 98 - murder of infant child - 8m son found in cot with breathing difficulties - post mortem found cause of death either SIDS or induced asphyxia - Crown sought to lead evidence of previous deaths of two children and life threatening incidents involving hospital visits for 4 of 5 children - Crown argued proved death of third child caused by induced asphyxiation - tendency evidence showing accused tended to conduct herself in manner detrimental to children.
Held: no expert prepared to exclude hypothesis consistent with innocence for each incident - all incidents had possible innocent medical explanations - evidence did not exclude reasonable hypothesis consistent with innocence - evidence inadmissible

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 - s.97 - convicted of attempt obtain possession commercial quantity of heroin - Crown led evidence that appellant a prisoner on work release at time of offence - evidence led to rebut appellant’s claim he was simply doing a favour for a friend and had no knowledge of drugs - where evidence incorrectly admitted.
Held: dismissing appeal - Judge did not need to consider admissibility under s.97 or s.101 because evidence not adduced for purpose of showing tendency - irrelevant that effect of evidence was to show tendency of appellant to commit offences.

GLC
NSW CCA [90] 31.3.2000
Evidence Act 1995 - s.97 - sexual offences against two complainants - Crown sought to lead evidence of both complainants in relation to all counts.
Held: Crown conceded evidence did not satisfy ss.97 or 98 requirements - offences occurred 4-5 years apart - no striking similarities - 5 year age difference in complainants.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) - s.97 - murder of wife - arranged for two co-offenders to kill wife by heroin overdose - motivated by custody dispute over son - Crown led evidence that appellant had put heroin in V’s coffee cup week before murder - evidence came from statements made by V to neighbour, friend and police officer - inference that heroin put in coffee cup to make it look like V used heroin - attempting to make death look like suicide.
Held: dismissing appeal - evidence admissible as relationship evidence under Wilson (1970) 123 CLR 334 and Frawley (1993) 69 A Crim R 208 - evidence went to issue of motive, consciousness of guilt and as preparatory act to murder - s.97, s.98 and common law rules on similar fact evidence do not apply to relationship evidence - admissibility depends upon relevance to issues and discretion to exclude evidence where prejudicial effect outweighs probative value - similar fact evidence test set out in Pfennig does not apply - no inflexible rule that where relationship evidence led there must be a direction that evidence not to be used as evidence of tendency to commit offences.

Player
NSW CCA [123] 12.4.2000
Evidence Act 1995 - s.97 - malicious damage - smashed window of fruit shop while intoxicated - security officers investigating sound of smashed glass observed offender behaving in aggressive manner kicking a bin and hitting a sign.
Held: answering stated case - judge did not err in admitting evidence of subsequent aggressive behaviour - not tendency evidence under s.97 - admissible as evidence of state of mind of appellant so close to commission of offence as to permit inference that same state of mind existed at time of offence - also admissible as part of transaction consisting of connected evidence (followed Adam and O’Leary).

MM
(2000) 112 A Crim R 519; NSW CCA [78] 24.5.2000
Evidence Act 1995 - s.97 - charged with sexual offences against young male - where evidence of uncharged acts relied upon by Crown to prove propensity to commit offence.
Held: allowing appeal - judge needed to direct jury they cannot use evidence to show propensity unless proved beyond reasonable doubt - needed to identify relevant evidence to jury.

Willoughby
NSWSC [751] Greg James J 31.7.2000
Evidence Act 1995 (NSW) s.97, 99, 101 - murder - Crown led evidence showing accused’s mobile phone used at time when assailant seen using mobile phone - sought to lead further evidence that accused used phone to carry on marijuana trade to show exclusive use of phone.
Held: evidence admissible - highly relevant to case where issue is identification of assailant - evidence of marijuana dealing not so prejudicial - not violent and can be dealt with by direction - Crown’s failure to give reasonable notice means jury discharged.

Martin
NSW CCA [332] 25.8.2000
Evidence Act 1995 s.97 - sexual intercourse without consent - climbed into bed with sleeping woman in lodge and forced intercourse - Crown led evidence that appellant had tried to do identical thing to another woman 15-30 minutes earlier
Held: evidence admissible - probative because could rationally affect issue of whether appellant cared about consent of complainant.

Holt
NSWSC [232] (Sully J) 30.3.2001
Evidence Act 1995 s 97 - murder - homeless man accused of bashing another homeless man to death with iron bar - no witnesses to offence - issue was whether accused struck victim with bar.
Held: current tension between common law approach to similar fact evidence and interpretation and application of statutory scheme under s.97 and s.102 - see Hulme in Le NSW CCA [49] 7.3.2000 for summary - until AH overturned must follow that case - Crown must establish no reasonable view of evidence consistent with innocence.
Held: evidence from various people as to violent and erratic behaviour of accused prior to night of killing inadmissible - extent to which such evidence could affect assessment of probability accused had struck victim slight and outweighed by prejudicial effect.
Held: evidence accused prone to mood swings and probably suffering from paranoid schizophrenia inadmissible - not probative of fact in issue.
Held: evidence of plea of guilty by accused to striking man with iron bar two days after killing inadmissible - cannot answer question of whether accused struck victim - relationship evidence.
Held: evidence of finding of steel bar in accused’s room after killing inadmissible - no connection to killing.
Held: arrest of accused several months after killing for unprovoked and violent attack on innocent driver of car inadmissible - incident well removed from killing.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 - s.97 - murder - evidence of hostile relationship between appellant and deceased - whether “relationship evidence” admissible - evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant.
Held: admissibility of “relationship evidence” governed by Evidence Act - its reception turned upon three issues: relevance, application/avoidance of any exclusionary provision, and whether any order should have been made under ss135-137. [R v Frawley (1993) 69 A Crim R 208 distinguished - numerous authorities referred to] - evidence properly admitted - evidence relevant – did not relate to so remote a period of time as to prevent it from being relevant - related to events happening no more than five weeks before the killing of the deceased - no error in not excluding under s135-137.

Bell
NSW CCA [2] 1.2.2002
Evidence Act 1995 - s.97, s.98 - admission of tendency and/or coincidence evidence - multiple sexual offences - evidence from number of complainants - whether danger of concoction - whether concoction basis for excluding evidence
Held: evidence properly admitted - no reasonable possibility of collusion or concoction between complainants.

F
(2002) 129 A Crim R 126; NSW CCA [125] 9.4.2002
Evidence Act 1995 - s.97, s.98, s.101 - sexual offences against 4 school students by gym teacher - appeal against decision to join three complainants - Crown appeal against decision to order separate trial in relation to one complainant
Held: central issue whether evidence of each complainant admissible as tendency or coincidence evidence in relation to other complainants - principles and tests considered - appeals dismissed.

Lamb & Thurston
NSWSC [323] Dunford J 11.4.2002
Evidence Act 1995 - 97 - murder - Crown tendered evidence that L drinking earlier in day, with T and in aggressive mood
Held: evidence not tendency evidence but admissible as transactional evidence pursuant to O’Leary - not relationship evidence because aggression not directed towards victim

Joiner
NSW CCA [354] 28.8.2002
Evidence Act 1995 - 97 - murder - charged with assaulting his wife during argument - Crown led evidence from previous partners of violence
Held: evidence of significant probative value - evidence of inability to control anger and violent reaction to women in relationship powerful evidence to rebut claim no intent to harm - on issue of whether probative value outweighed prejudice followed WRC NSW CCA [210] 7.6.2002 which applied Pfennig - test should be whether there is a rational view of the evidence consistent with innocence - rational equals reasonable - propensity evidence must be such that, when added to all other evidence, would eliminate any reasonable doubt - evidence allowed
Baird
NSW CCA [460] 30.10.2002
Evidence Act 1995 s.97 - aggravated sexual assault - no inconsistency in verdicts - Markuleski applied - evidence to support complainant's evidence of tape having being used to tie her up during the assault that was presented by Crown
Held: no unfairness to accused - appeal dismissed

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.97 – drug supply - relationship between propensity evidence at common law and tendency evidence under Evidence Act - - admissibility of evidence of prior criminal conduct where not adduced for tendency purpose - where accused was subject of telephone intercepts said to reveal prior heroin supplies
Held: evidence admissible on basis it referred to a drug supply to occur within a few days, not on a broader basis re prior relationship of other drugs dealings - Crown expressly asserted evidence not to prove tendency and judge directed jury evidence not to be used for that purpose.

Andrews
NSW CCA [7] 6.2.2003
Evidence Act 1995 (NSW) s.97 - murder - appellant killed wife out of jealousy - evidence of previous incidents when appellant showed aggression motivated by jealousy allowed at trial
Held: appeal dismissed based on overwhelming evidence against appellant - Court referred to unsettled question of whether provisions in 97 and 101 that tendency evidence must have “significant probative value … substantially outweighing any prejudicial effect on the defendant” are to be interpreted according to their natural meaning or in accordance with Pfennig (1995) 182 CLR 461

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.97 - conspiracy to import
Held: just because evidence shows bad character does not mean it is inadmissible if relevant for some other purpose - followed Quach and Harriman (1989) 167 CLR 590

Symss
NSW CCA [77] 2.4.2003
Evidence Act s.97 - murder - robbery in company - evidence concerning co-accused's previous use of knives - statement concerning an alleged knife threat by co-accused against his sister - evidence not sufficiently probative and not wrongly excluded
Held: verdict reasonable - appeal dismissed.

Lumsden
NSW CCA [83] 3.4.2003
Evidence Act s.97 - ongoing supply of methylamphetamine to undercover police officer - evidence as to drugs found on appellant's premises two months after alleged offences was relevant and admissible - no more prejudicial than evidence establishing ongoing supply charge.
Held: appeal dismissed

Ellis
(2003) 58 NSWLR 700; 144 A Crim R 1; NSW CCA [319] 5.11.2003
Evidence Act 1995 (NSW) s.97 – break enter and steal offences – judge allowed joint trial of 11 counts on basis evidence of each offence would be admissible against other counts – unusual and consistent modus operandi used – 5 judge bench convened to settle conflict over interpretation of s.101 test – whether common law test of Pfennig (whether no rational view consistent with innocence of accused) applies to statutory formula that probative value of evidence must substantially outweigh prejudicial effect
Held: appeal dismissed - common law test (no rational explanation consistent with innocence) replaced by statutory formula (balance probative value against prejudicial effect) – Pfennig does not apply – Trial judge did not err in applying statutory test not common law test

Li
NSW CCA [407] 23.12.2003
Evidence Act 1995 (NSW) s.97 – detain for advantage and common assault – appellant threatened ex-wife in own unit – complainant fell from balcony in attempt to escape – serious injury – evidence of prior threatening and violent behaviour of appellant towards wife admitted
Held: appeal allowed – evidence should not have been admitted as tendency evidence – in relation to first count evidence did not show tendency to detain – in relation to second count probative value outweighed by prejudice
Held: (Dunford J – dissenting) – evidence admissible in relation to first count – do not need to show tendency to detain – sufficient to show tendency to act in violent way

Barton
NSW CCA [229] 8.7.2004
Evidence Act 1995 (NSW) s.97, 101 – Sexual offences against 7 young boys – joint trial held involving all complainants – evidence of each complainant relied upon as tendency evidence in support of other complainants – allegations of two complainants more serious than other complainants
Held: allowing appeal – applied Ellis – “the precautions concerning what was previously termed propensity and similar fact evidence do not cease to have validity. The aims of common law and statute are identical in the sense that they are directed towards safeguards against possible wrongful conviction.” – TJ erroneously considered evidence from all complainants together and failed to consider relevance and effect of fact that some allegations involved less serious conduct than others – counts involving more serious offences should have been separated

Cakovski
(2004) 149 A Crim R 21; NSW CCA [280] 19.8.2004
Evidence Act 1995 (NSW) s.97 – murder - appellant claimed self defence when victim threatened to kill him – TJ refused to admit evidence that victim had been convicted and served time for three murders committed in 1978 – murders related to drug trade – also declined to admit evidence of death threat made by victim during fight with third person earlier in evening
Held: allowing appeal - Per Hodgson JA – evidence relevant and admissible otherwise than as tendency evidence - made highly improbable account of appellant more likely – relevant to question whether reasonable possibility victim made threats – substantial probative value not outweighed by unfair prejudice - may not have passed tendency evidence test
Per Hulme J – evidence not admissible as tendency evidence – too old and insufficient detail given to allow comparison between earlier murders and behaviour on night of offence – was admissible on basis stated by Hodgson JA
Per Hidden J – using evidence to show reasonable possibility victim made death threats is tendency evidence – admissible as tendency evidence – significant probative value

Watkins
NSW CCA [164] 1.6.2005
Evidence Act 1995 (NSW), ss 97, 98 – defrauded body corporate as officer thereof – deposited cheques totalling over $2M into own account signed by one of the company directors – Crown tendered evidence of 37 counts of larceny as a clerk for which A convicted in 1985 and the similarities between the two – points of dissimilarity however overlooked – prejudicial effect outweighed probative effect – though very strong Crown case, but proviso not applied
Held: appeal allowed and retrial ordered
 
Fletcher
NSW CCA [338] 23.9.2005
Evidence Act 1995 (NSW), ss 97, 98, 101 – Catholic priest sexually abused 13-14y altar boy from the church– tendency and coincidence evidence from another altar boy/alleged victim – significant differences between conduct alleged to have occurred with two boys – 4 years elapsed between events but significant similarities – difficulties constructing s101(2)
Held: appeal dismissed by majority – consideration of principles behind admission of tendency and co-incidence evidence – similarities not restricted to mode of sexual offences – similarities could be found in circumstances such as use of position as parish priest –open for TJ to find probative value not outweighed by prejudicial effect under s.101
 
Mearns
NSW CCA [396] 8.12.2005
Evidence Act 1995 (NSW) s 97 – sexual offences against step daughter – directions in relation to evidence of uncharged sexual misconduct
Held: appeal dismissed - discussion as to appropriate directions to jury – evidence inappropriately left as tendency evidence – failure to give propensity warning – no miscarriage in circumstances of case
 
Phillips
[2006] HCA 4, (2006) 158 A Crim R 431
Criminal Code (QLD) s.567 – multiple sexual assault offences against 6 complainants by teenage boy – Appellant alleged sexually assaulted 6 teenage girls on separate occasions over several years - each complainant was an acquaintance, coming into contact with the appellant at a party or get together - several applications for separate trials refused - whether offences were “a series of offences of the same or similar character” permitting joinder of indictment under s.567(2) Criminal Code - whether evidence constituted similar fact evidence.
Held: appeal allowed - trial judge allowed use of similar fact evidence not as propensity evidence but to discredit appellant’s claim that each complainant consented to sexual activity – i.e. demonstrated improbability that all 6 complainants would lie – error - evidence by some complainant as to lack of consent cannot establish lack of consent by another complainant
Held: on any test similar fact evidence must possess some “particular probative quality” - in this case similarities were unremarkable and did not have sufficient probative value.
[79] Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant.
 
Darwiche
[2006] NSWSC 922, Bell J, 14.2.2006
Evidence Act s.97 – shoot with intent to kill – two unrelated offences – allegedly committed in context of long running dispute between families – ‘tit-for-tat’ shootings – disputed identification evidence
Held: not significantly probative because of disputed nature of evidence – disputed identification evidence may unfairly strengthen evidence in each case – probative value did not substantially outweigh prejudice
 
Ngatikaura
[2006] NSWCCA 161, 161 A Crim R 329
Evidence Act s.97, 101 – prior criminal conduct – whether tendency evidence – prosecution sought s5F(3A) declaration that evidence of prior drug supply by accused should have been admissible to show tendency of accused to supply drugs - whether general exclusionary provisions (ss.135-137) operate where tendency provisions apply.
Held: evidence of prior offences was tendency evidence and its admissibility was governed by ss.97(1) and 101(2): Fletcher [2005] NSWCCA 338 (discussed) - there is no room beyond operation of tendency provisions for application of either s.135 or s.137 to tendency evidence - as trial judge did not consider whether evidence should be admitted under s.97, nor whether s.101(2) should operate to exclude evidence, matter remitted to District Court.
 
Gardiner
[2006] NSWCCA 190, 162 A Crim R 233
Evidence Act s.97, 101 – possess firearms – firearms found in storage unit leased by appellant – claimed rented on behalf of bikie club where many others had access – on same day firearms found in club headquarters – appellant club president – no charge over firearms found at headquarters but lead as tendency evidence – police relied upon evidence of informer – appellant claimed set up
Held: Tendency evidence wrongly admitted – failure to consider s.101(2) unfair prejudice – evidence unfairly raised suggestion appellant involved in uncharged offences, or associated with people involved in firearms offences – also failed to identify tendency – evidence could not go to proving appellant’s ownership of guns in storage unit
Held: per Simpson J – summary of approach to considering admission of tendency evidence – evidence not relevant to any fact in issue in this case
 
Sood
[2006] NSWSC 695, Simpson J, 10.7.2006
Evidence Act s.97, 101 – manslaughter; unlawfully administer drug to procure miscarriage – doctor alleged to have given patient oral and vaginal abortifacient – Crown seeking to lead evidence of giving similar drugs to another patient and taking cash payment without issuing receipt
Held: evidence as to giving tablets relevant to fact in issue, probative and not outweighed by prejudice – taking cash without receipt not probative and prejudicial
 
Leonard
[2006] NSW CCA 267, 31.8.2006
Evidence Act s.97, 101 – sexual offences – multiple offences committed against stepdaughter – mother gave evidence of seeing accused pulling blankets away from complainant
Held: no error in admitting evidence
[per Hodgson JA] – evidence of uncharged sexual misconduct of accused towards child complainant – suggested evidence of this sort should be divided into three categories: relationship evidence, tendency evidence and motivation evidence – motivation evidence if “relevant to support inference that accused was sexually attracted to the complainant, so had a motive to act in a sexual manner” – not tendency evidence and may strengthen probative value of relationship evidence – may be little practical distinction between motivation evidence and tendency evidence where child sex offence
[per Grove J] - declined to consider characterization – evidence admissible as relationship evidence
[per Adams J] - found distinction logically attractive but problematic in practice – evidence admissible as relationship evidence
 
Tully
[2006] HCA 56, 7.12.2006
Sexual offences – child complainant gave evidence of uncharged sexual acts – evidence admitted as ‘relationship evidence’
Held: dismissing the appeal – (Callinan J, Heydon and Crennan JJ agreeing) - authorities regarding uncharged acts are not clear and there are significant problems with the admissibility of the evidence.
[140] The judgments of the majority in Gipp and subsequent authority accordingly do not, I would emphasize, countenance the reception of evidence simply as relationship evidence "to explain the nature of the relationship". They require as a minimum that evidence of uncharged acts have some actual direct probative value relevant to the issues, that it be carefully scrutinized before it is admitted, that it may need to be characterized as propensity evidence, and that it almost always will require, if admitted over objection, directions appropriate for evidence of that kind.
General and non-specific admission of evidence of uncharged acts under the heading of “relationship evidence” not satisfactory - issue needs to be clarified - in this case no objection taken and no miscarriage
(Kirby J) declined to consider direction as to uncharged acts – not suitable case to consider question, but desirable that High Court provide authoritative statement soon
 
KJR
[2007] NSW CCA 165, 29.6.2007
Evidence Act s.97 – sexual offences – old offences against daughter – evidence of violence against mother of complainant and uncharged sexual misconduct against complainant permitted as tendency evidence - directions
Held: appeal dismissed – discussion by Rothman J as to distinction between s.97 tendency evidence and s.98 co-incidence evidence – although directions sometimes more appropriate for co-incidence evidence no error
 
GAC
[2007] NSW CCA 315, 21.11.2007
Evidence Act s.97 – sexual offences – charged with offences against daughter of girlfriend – Crown sought to lead evidence of sexual offences against daughter and daughter’s friend accused pleaded guilty to ten years ago – trial judge found probative value did not outweigh danger of unfair prejudice
Held: appeal dismissed – decision under s.97 and 101 a discretionary decision – no error
 
Gonzales
(2007) 178 A Crim R 232 at [21]-[26]
Evidence Act 1995 (NSW) s 97
Held: following Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted
 
Rodden
[2008] NSW CCA 53, 20.3.2008
Evidence Act s.97 – sexual offences against step-daughter – evidence of transcript of telephone conversation between appellant and complainant admitted as evidence of guilty passion – reference to assaults vague and appellant gave evidence he thought conversation was about breakup in relationship with complainant’s mother – whether evidence should not have been admitted – whether directions inadequate
Held: appeal allowed –answers given by appellant in conversation capable of giving rise of inference of guilty passion and therefore relevant to proof of offences by bolstering complainant’s credibility – directions in relation to use of evidence inadequate – failed to make clear limited use of evidence
 
AE
[2008] NSW CCA 52, 20.3.2008
Evidence Act ss.97, 102 – sexual offences against step-daughter and daughter – step-daughter alleged lengthy history of sexual abuse – daughter alleged single incident – trial judge refused application for separate trials on basis evidence in relation to step-daughter admissible at trial for daughter
Held: appeal allowed – trial judge erred in finding no possible concoction – unfair to admit evidence – possibility jury would become overwhelmed by evidence – prejudice too great
 
HML, SB, OAE
[2008] HCA16, 24.4.2008
Evidence Act ss.97 – sexual offences against young female relatives - Complainants’ evidence of uncharged sexual acts admitted – appeal from South Australian CCA - whether TJ erred in admitted evidence of uncharged sexual acts - whether inadequate direction in relation in relation to evidence of uncharged sexual acts
Held: appeal dismissed
It is very hard to determine a ratio decidendi. The entire judgment runs for 91 pages (with footnotes), each judge giving a separate judgment (although Gummow J agreed with Hayne J in relation to all matters raised except for one where he agree with Kirby J).
The case was determined under common law and considers, considers inter alia the application of the Pfennig test for the admissibility of material tendered as evidence of sexual passion/interest.
In NSW the Pfennig test has been replaced (see Ellis) and such questions are determined under the relevant sections of the Evidence Act.
 
Smith
[2008] NSW CCA 247, 30.10.2008
Evidence Act ss.97, 98 – sexual offences against young girl – complainant staying at respondents’ house with father and sister – indecent assault and digital penetration while complainant and other children sleeping on lounge room floor – TJ declined to admit evidence of prior convictions for child sexual assaults on basis circumstances were identical but actual allegations different – earlier offences included only fondling of vagina and no touching of other parts of body
Held: appeal allowed – in fact actual allegations similar – evidence of earlier convictions demonstrated respondent’s sexual interest in young girls, fondling of vagina and willingness to commit offences in room with other people
 
Cittadini
[2008] NSW CCA 256, 5.11.2008
Evidence Act ss.97 – manslaughter – Director and manager of company who constructed yacht – defective keel caused boat to capsize and kill four of six crew – question in issue was knowledge of defective keel – Crown relied, as alternative, on failure to implement proper supervision or quality control – sought to adduce evidence of other defects in construction of yacht to establish defective system – TJ excluded evidence as tendency evidence
Held: appeal allowed – (Per Simpson J, McClelland CJ at CL agreeing, McCallum J dissenting)
[23] Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).
Crown not seeking to argue that because appellant negligent in other areas must have been negligent in construction of keel – rather seeking to show negligent system in construction of yacht explains defective construction of keel – seeking to prove system by establishing other defects – not tendency evidence
 
Ford
(2009) 201 A Crim R 451
At [37]-[64] – consideration of tests for admission of s.97 evidence – at [53] generality of alleged tendency can prevent evidence having significant probative value - in this case judge made two errors – found evidence was not tendency evidence and therefore not admissible under s.97 – looked for tendency to commit similar acts not a tendency to act in a particular way
 
O’Keefe
[2009] NSW CCA 121, 27.4.2009
Evidence Act ss.97 – sexual offences – charged with sexual offences against four complainants – Crown led evidence of each assault as tendency evidence – first three complainants attacked by man with a bicycle dressed in cycling clothes in bushland – fourth complainant attacked in bushland but no bicycle or cycling clothes – whether tendency evidence too general and should not have been admitted
Held: appeal allowed – fact that all attacks occurred in bushland and offender displayed interest in breasts not sufficiently significant to justify admission of evidence as tendency evidence
 
Bingul
[2009] NSW CCA 239, 18.9.2009
Evidence Act ss.97, 101 – drug offences – tendency evidence – Crown led evidence of taped conversations which occurred on dates other than the dates of charged offences - Defence counsel submitted a global objection to particular conversations contained in s 101 notice – Whether evidence should not have been admitted.
Held: Appeal dismissed.
a) The objection to the tendency evidence made by defence at trial only covered the particular identified conversations in the notice and not all of the evidence: [31].
b) At trial defence counsel argued prejudice in the identified conversations on a “global” basis and the trial judge dealt with the objection in a way that reflected the manner in which the objection was argued: [35] -[36].
c) The “global approach” and the nature of the expressed prejudice meant that what was put on appeal as prejudice was never articulated before the trial judge so there was no error: [36].
d) ss 97 and 101 did not require trial judge to examine each conversation in the evidence separately or to deal with the objections in a way differently to the overall global approach taken by counsel: [37].
 
LJW
[2010] NSW CCA 114, 4.6.2010
Evidence Act ss.97 – child sexual offences complainant claimed sexually assaulted during trip to Muswellbrook with offender and offender’s son – offence took place at night in bed – admissibility of evidence from complainant he saw offender masturbating in car during trip to Muswellbrook 12 hours earlier
Held: Appeal dismissed – although evidence not part of res gestae admissible as showing on particular day of offence offender showed interest in sexual activity and lack of inhibition in front of complainant and stepson
 
Ceissman
[2010] NSW CCA 50, 22.3.2010
Evidence Act ss.97, 98 – Crown appeal s 5F Criminal Appeal Act 1912 against ruling by trial judge rejecting Crown’s application to introduce tendency and co-incidence evidence - 22 robbery offences arise out of five separate criminal enterprises - Alleged co-offender, McC, pleaded guilty and relied upon by Crown to give evidence that R involved in offences.
Held: Judge erred in rejecting evidence; Ruling set aside. The evidence of the “related events” is capable of rationally affecting the probability that the offences were committed by the same offenders (i). The test is one of capability, that is, is it open to the jury to conclude from the “related events” that the offences were committed by the same offenders : R v Shamouil [2006] NSWCCA 112 at [61] to [65]. The answer to that question in this case is yes. The second stage of the analysis is to combine the “related events” with the other evidence relied upon ((ii) to (iv)) and pose the question, having regard to all of the evidence, is the jury likely to assign the evidence of the “related events” significant probative value. The answer is yes. R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at 537.
 
ES v R (No. 1)
[2010] NSW CCA 197, 22.3.2010
Evidence Act ss.97, 101 – Child sexual assault - Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.
Held: Evidence wrongly admitted. Conviction quashed. New trial ordered.
K’s evidence about her observation of events objected to on the basis that its prejudicial effect outweighed its probative value. Objection occurred where no notice given under s 97, no direction under s 100 (dispensation with notice) had been sought or given, and Crown had stated it would not be leading tendency evidence.
If evidence of uncharged acts is to be used in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.
In this case the only basis on which the evidence in question could have been admitted was as context evidence. No reference made to s 97 or s 101 Evidence Act, and these sections were not referred to by the trial judge. TJ addressed the question in terms of whether the evidence was relevant and if so whether its probative value was outweighed by its prejudicial effect. The trial judge held the evidence was relevant in that it corroborated the complainant, and that it was not unfairly prejudicial.
The modest probative value as context evidence was outweighed by danger of unfair prejudice from its probative force as motive/tendency evidence (which must be considered as unfairly prejudicial).
 
R v PWD
[2010] NSW CCA 209, 17.9.2010
Evidence Act ss.97 – Child sexual assault – s 5F (3A) Criminal Appeal Act 1912, s 5F (3A) – Crown appeal against trial judge’s decision on admissibility of evidence – Crown seeks to prove A has a tendency to have a sexual interest in young male students, to engage in sexual activities with young male students, and use his position of authority to obtain access to young male students for sexual activity - Crown does not rely on a case of striking similarities, but rather on a pattern of behaviour, modus operandi, system or pattern and common threads (the pattern) in the respondent’s conduct - whether “sufficient similarity” or “striking similarity” required in establishing tendency – whether a pattern of behaviour, modus operandi or system or pattern with common threads is required in establishing tendency - evidence of tendency of principal of college to have sexual interest in young male students and to engage in sexual activities with young male students - multiple allegations – evidence of each allegation “different”. Held: Appeal allowed. Trial judge’s ruling vacated. The evidence of the four complainants and the other two tendency witnesses is capable of rationally affecting the assessment of the probability of A having engaged in the conduct alleged and had a sexual interest in doing so. Evidence has significant probative value. TJ erred in finding that whatever significant probative value there may be in the evidence, that did not substantially outweighed its prejudicial effect.
 
DJS v R
[2010] NSW CCA 200
Evidence Act ss.97, – Child sexual assault - Trial judge failed to direct jury that uncharged incidents suggesting sexual interest in V must be proved beyond reasonable doubt – Whether a miscarriage of justice – Whether proviso should be applied.
Held: Appeal dismissed. TJ’s error had no significance in determining verdict. Also, having independently assessed the evidence, and taking account of the jury verdict, A was proved beyond reasonable doubt to be guilty. No substantial miscarriage of justice. Misdirection was not so fundamental that A was deprived of a trial according to law.
 
RG v R
[2010] NSW CCA 173
Evidence Act s.97 – Child sexual assault – evidence that complainant had slept in same bed as appellant on numerous occasions and been indecently touched by him led as evidence of context – whether evidence should have been dealt with as tendency evidence
Held: stated purpose of evidence by Crown was as context not tendency evidence – appeal court should still look at actual trial and consider how evidence was used – in this case no reason not to accept Crown’s statement of purpose – as context evidence the evidence was not subject to limitations under ss.97 and 101 – was subject to considerations of 135 and 137
 
BP
[2010] NSW CCA 303
Evidence Act s.97 – Child sexual assault – charged with sexual offences against three family members – failed in application for separate trials
Held: evidence of each complainant sufficiently similar to constitute tendency evidence – discussion of principles for determining tendency evidence and probative value
 
Ceniccola
[2010] NSWSC 1554, Harrison J, 3.12.2010
Evidence Act s.97, 110 – murder – accused alleged to have shot neighbour in dispute over fence – whether statement from another neighbour admissible – statement raised good character and tendency to resolve fencing matters with neighbours in proper manner
Held: statement admissible – tendency evidence can be used as evidence of good character under s.110 – significant probative value means something more than mere relevance but something less than substantial degree of relevance – in circumstances of case evidence relevant and probative to good character
 
Lane
[2010] NSWSC 1538, Whealy J, 6.10.2010
Evidence Act s.97, 101 – murder – accused alleged to have killed unwanted newborn child – Crown seeking to use evidence already before jury as tendency evidence – Crown alleging accused used fictitious name when asked about paternity of child – Crown seeking to use evidence that accused had previously used fictitious name for father of previous child – whether evidence should be used as tendency evidence – whether it should be excluded under s 101 – what directions should be given to the jury
Held: evidence admissible as tendency evidence – any possible prejudice can be dealt with by appropriate directions
Consideration of approach to tendency
[19] It is clear law that evidence that a person has or had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McClellan CJ at CL agreed) in Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 stated: -
Tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).
[20] It is also common ground between the parties here that, as a general rule, tendency evidence is placed before a jury as evidence tending to prove the guilt of the accused. Evidence, however, may be offered simply to show a tendency to act in a particular way. It is not necessary that the tendency be to commit a particular crime or, for that matter, to commit a crime at all. Section 97 applies to both civil and criminal proceedings. It represents a fresh start in relation to the issues involved in the categories of evidence known historically as propensity evidence and similar fact evidence. To assess whether evidence is capable of being admitted as tendency evidence, it is first necessary to consider the issues at trial and the likely probative force of the evidence, having regard to those issues (Pfennig (1995) 182 CLR 461). Probative value is defined in the Evidence Act in the following terms: -
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue
Tendency evidence is itself defined in the Dictionary but the definition is of little assistance.
[21] The questions which arise under s 97 are these: could the jury infer that the particular evidence, either by itself or having regard to other evidence to be adduced by the Crown, shows a tendency to act or think in a particular way in a given situation? Would such an inference be open for the jury to draw? Secondly, having regard to the issues at trial, would the inferences available from the evidence be of importance or of consequence in assessing the probability or otherwise of the issues or any of them? (Facts in issue, in the context of this discussion, mean more than the ultimate facts in issue - that is, they can extend beyond the ingredients of the offence with which the accused is charged (Cornwell (2007) 231 CLR 260). Evidence can be of significant probative value even where the available inferences are capable of pulling in opposite directions. Indeed, its significance may be enhanced by that very possibility.
[22] In Ford [2009] NSWCCA 306, Campbell JA (with whom Howie and
Rothman JJ agreed) said at [125]:-
In my view there is no need for there to be a “striking pattern of similarity between the incidents”. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.
I would simply add that tendency evidence that is capable of suggesting that it is unlikely, to a significant extent, that the accused committed the offence would also plainly meet the statutory test.
[23] If evidence has been properly classified as tendency evidence and has passed the hurdle in s 97, it is next necessary in a criminal trial to assess whether the evidence should be excluded, having regard to the provisions of s 101 Evidence Act. The test is whether the admission of the evidence involves a risk of an unfair trial (RM [2005] NSWCCA 413; Ford at [58]). As McHugh J stated in Pfennig (1995) 182 CLR 461 at [40] 528-9:-
The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
[24] In HML; SB; OAE (2008) 235 CLR 334, a case of relationship evidence, Gleeson CJ remarked that the reason for exclusion of propensity evidence was not related principally to its relevance or irrelevance, but rather because of its prejudicial effect, that is the danger of improper use of the evidence.
Gleeson CJ stated:-
“It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against.”
[25] The statutory test is that the evidence must be excluded unless its probative value substantially outweighs any prejudicial effect it may have on the accused.
 
Dao
[2011] NSWCCA 63, 1.4.2011
Evidence Act s.97, 101 – Appeal pursuant to s5F Criminal Appeal Act - multiple child sexual offences – A sought orders for separate trials - DPP gave notice under s 97 – District Court judge ordered separate counts for 3 complainants but declined for 3 other complainants which ordered to proceed as a joint trial on basis of tendency – whether CCA had jurisdiction to deal with s 5F application - whether CCA bound to determine appeals that raise the correctness of a decision on the admissibility of evidence tendered under s 97 by reference to House v The King or Warren v Coombes.
Held: Appeal dismissed. Cited from Headnote to judgment:-
“On the issue of jurisdiction
(per curiam)
1. Section 5F is available to review an interlocutory judgment or order. A decision or ruling as to the admissibility of evidence is not an interlocutory judgment or order. Section 5F is therefore not available to review such a decision or ruling: [6], [74], [123].
2. The refusal to order separate trials on the application of an accused is an interlocutory judgment within the meaning of s 5F. In this case, there was an application for an order for severance of counts on an indictment, and an order made. Therefore, this Court has jurisdiction: [2], [76], [125].
On the issue of the correct approach to judicial review of s 97 decisions
(per Spigelman CJ, Kirby J agreeing)
It is strongly arguable that the test in s 97 is analogous to the various statutory formulations which require a decision-maker to be "satisfied" of a certain matter. The line of authority flowing from Singer v Berghouse suggests that a decision under s 97(1) is reviewable only on House v R grounds. However, the contrary view has been put forward with cogent reasoning: [28], [29], [34].
(per Allsop P, Kirby J agreeing)
The question of the correct approach to review of s 97 decisions does not strictly arise in this case. This matter should be approached as a review under s 5F of a discretionary decision not to separate the trials in question: [77]-[80], [106].
If it is necessary to review an effective ruling on evidence under s 97, review will be of a character analogous to that discussed in Shrimpton v The Commonwealth , and in practice there is likely to be little difference between this approach and the application of House v The King. As to review of a decision under s 101, the predominant view, at least in New South Wales, based on R v Blick , is to the effect that what is involved is a balancing exercise that is to be reviewed on the principles in House v The King : [82], [83], [84], [88], [100], [101], [104].
(per Simpson J, Schmidt J agreeing)
Review by this Court of a decision under s 97 is governed by the principles stated in House v The King : [157], [178].
There is no separate "decision" under s 101. The relevant "decision" is a decision under s 97. The effect of s 101 is to introduce into the s 97 decision, for criminal cases only, an additional consideration, which amounts to a further barrier or hurdle to admissibility. What is involved under s 101 is quintessentially a judgment, reviewable only on House v The King principles: [171].
 
On the grounds of appeal: that his Honour erred in finding that the evidence with respect to each of the complainants was admissible as tendency evidence
(per curiam)
On the application of the principles in House v The King , the trial judge correctly weighed up the competing considerations and reached a view that the evidence of the three complainants could have interconnecting significant probative value. His Honour also correctly applied s 101. There was no misapplication of principle. The decision was one that was entirely open to the trial judge. An evaluation under Warren v Coombes leads to the same result: [105], [202]-[204]. “
 
FB
[2011] NSW CCA 217
Evidence Act s.97, 101 –sexual assault – headmaster convicted of sexually assaulting 14y student staying with family – pleaded guilty to sexual intercourse with different student that occurred fourteen months after trial offences – whether evidence of subsequent offences should not have been admitted as tendency evidence
Held: Appeal dismissed – tendency evidence does not have to be evidence of criminal misconduct (at [24]) – do not have to use old formula of ‘striking similarity’ when applying test under s.97 (at [26-27] citing Ford [2009] NSWCCA 306 at [125], BP [2010] NSWCCA 303 at [108]) – in this case sufficient similarity to have significant probative value
 
Hawi (No.17)
[2011] NSWSC 1663 15.8.2011
Evidence Act 1995 (NSW) s.97 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application to tender evidence of criminal offences against Crown witness – witness involved in incident but gave evidence for Crown – defence seeking to argue witness downplayed own role in incident and attributed own acts to accused – seeking to tender evidence of two old offences of violence and one offence of possessing a weapon
Held: application refused – not satisfied evidence could affect probability of existence of facts in issue – not capable of significant probative value – old offences too dissimilar and one offence involved threatened violence only – weapon offence not relevant where involved possession not use of weapon
 
Hawi (No.23)
[2011] NSWSC 1669 23.8.2011
Evidence Act 1995 (NSW) s.97 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application to tender evidence of criminal tendency against deceased – deceased member of rival gang – victim initially attacked accused with scissors at airport – fact in issue whether victim continued with attack or was pursued while running away – evidence from police officer that two days before incident victim involved in violent incident with officer at residential units – also sought to tender criminal record containing offences
Held: application allowed in part – incident two days before relevant to fact in issue – evidence of tendency to engage in and persist with violent conduct with use of weapon – offences on criminal record minor and primarily of a domestic nature and too dissimilar to be relevant
 
SK
[2011] NSWCCA 292
Evidence Act 1995 (NSW) s.97 – sexual assault – charged with sexual offences against nieces and nephew – offences committed at family gatherings – whether trial judge erred in finding evidence of three female complainants admissible as tendency evidence – whether erred in separating trial of male complainant on basis of gender
Held – no error in ordering joint trials of female complainants – underlying pattern of behavior – general statement of prejudice not sufficient to exclude evidence – per Rothman J discussed difference between tendency evidence and co-incidence evidence – TJ did err in separating trial of male complainant where gender not part of alleged tendency
 
White (No.3)
2012] NSWSC 467 per RA Hulme J 5.4.2012
Evidence Act 1995 (NSW) s.97 – murder – application to lead evidence of prior conduct to support defence that co-accused acted under duress
Held: application refused – evidence imprecise, general and unrelated to situation – little evidence of accused previously making threats of violence of enlist friends
 
Meyn (No.2)
[2012] NSWSC 1449 Beech-Jones J 21.11.2012
Evidence Act 1995 (NSW) s.97 – murder - tendency - domestic homicide - murder - application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship - alleged attempt to strangle previous partner's male colleague - alleged attempt to strangle previous partner - accused caused self harm following dispute with previous partner - similarity of acts - distance in time - whether significant probative value to facts in issue.
Held: Evidence inadmissible.
[15] Sections 97 and 101 are exclusionary rules that apply to evidence that a person, in this case the accused, "has or had a tendency ... to act in a particular way". They operate on evidence of a person's tendency which has already met the threshold test for relevance in s 55 of the Evidence Act. As was noted in Cittadini [2008] NSWCCA 256; 189 A Crim R 492, by Simpson J at [23] (McClellan CJ at CL agreeing):
"... tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind)."
[16] In Fletcher [2005] NSWCCA 338; 156 A Crim R 308, at [33] to [35], Simpson J (McClellan CJ at CL agreeing) analysed the steps involved in addressing the tender of tendency evidence under s 97. Her Honour stated:
"[33] It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind:
(i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury);
(ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence 'to be adduced', and implicitly by the use of the subjunctive 'would not' in s 97(1)(b).
(iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of 'probative value' contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue;
(iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, ie if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible.
[34] I have not, to this point, said anything about the identification of the 'fact in issue', the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant.
[35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence 'to be adduced' is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated."
[17] In Bangaru [2012] NSWCCA 204, I explained at [263] to [265] (Beazley JA and Hall J agreeing) how the principles stated by Simpson J in Fletcher were endorsed by a five member Court of Criminal Appeal in the context of considering s 98 of the Evidence Act in DSJ [2012] NSWCCA 9; 259 FLR 262, with one modification. That modification was the fourth proposition stated by Simpson J in Fletcher at [33]. It was reformulated by Whealy JA (Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreeing) in DSJ at [72] so that the test of significant probative value requires a trial judge to:
"[T]ake the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue."
[18] That said, it has to always be remembered that such "importance" or "consequence" is to be assessed by the evidence's capacity to justify the application of tendency reasoning, as explained in Cittadini, to the evidence sought to be adduced as a means of establishing the facts in issue.
[19] In PWD [2010] NSWCCA 209; 205 A Crim R 75, Beazley JA (Buddin J and Barr AJ agreeing) reviewed the authorities concerning tendency evidence and concluded at [79]: "The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour". PWD was a Crown appeal from a rejection of tendency evidence. The respondent was charged with a number of indecent assaults on male teenage students at a boarding school. The Crown sought to adduce evidence of other indecent assaults. The Crown did not allege that there were "striking similarities" in the respondent's conduct but rather contended there was "a pattern of behaviour, modus operandi, system or pattern and common threads ... in the respondent's conduct" (PWD at [35]). That was held to be sufficient.
[20] Needless to say these are all matters of fact and degree. A single previous incident may be able to meet the statutory test of significant probative value, however, to do so it is likely that there will need to be strong or even striking similarities between that one incident and the facts in issue so as to enable the test to be met by the use of tendency reasoning. Generally, if there is more than one incident, then the less likely it is that there needs to be such strong similarities to meet the statutory test, bearing in mind that a person's habits, tendencies or modus operandi commonly bend to meet particular circumstances. This is illustrated by the discussion in Bangaru at [267] to [275].”
 
Meyn (No.5)
[2012] NSWSC 1590 Beech-Jones J 3.12.2012
Evidence Act 1995 s 97 - domestic homicide - evidence of prior domestic violence - relationship evidence - whether tendency evidence - whether significant probative value.
Held: Evidence inadmissible. The court is left with a single instance of domestic violence prior to the killing. For a single prior instance of domestic violence to be admissible as tendency evidence, as opposed to some other basis, there would need to be strong similarities between that occasion and the killing to warrant a conclusion that it has significant probative value (see Meyn (No 2) at [20]). In my view there do not appear to be sufficiently common features between this single incident of violence towards the deceased and the events of her death to conclude that the former had significant probative value to prove the Crown's case on the latter.
 
Christian
[2013] NSWCCA 98
Evidence Act 1995 s 97 – Appellant convicted of drug offences – drug found in bottle in hotel room – Crown led evidence of small amount of prohibited drug found in bottle in possession of appellant at arrest – during trial became clear drug in bottle on arrest not same as drug in hotel room
Held: evidence of small bottle could only constitute tendency evidence – no link between drug in bottle on arrest and drug in hotel room – appeal allowed and conviction quashed – considered Fung (2002) 136 A Crim R 95 and Ngatikaura (2006) 161 A Crim R 329
 
BJS
[2013] NSWCCA 123, 24.5.2013
Evidence Act 1995 s 97 - Appellant a former Catholic priest - 11 counts indecently assaulting four different child victims over five year period - whether trial judge erred in permitting Crown to rely upon tendency evidence - the tendencies were kissing on the mouth, placing tongue inside Vs’ mouth, lying on top of the complainants and witnesses, rubbing against the complainants and witnesses and touching in vaginal area - The common link was use by A of his social and pastoral relationship with the families to obtain access to the young girls.
Held: No error by trial judge.
“45 The language of s97(1)(b) refers to the evidence having "significant" probative value. This is not consistent with the requirement under the general law that there be no rational explanation for the evidence, apart from its cogency in respect of the charge. Further, the balancing test required by s10
(2) is inconsistent with a general requirement as to probative value in terms of the Pfennig test. As explained by Spigelman CJ (with whom Sully, O'Keefe,
Hidden JJ agreed) in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]:
"The "no rational explanation" test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe section 101(2) to that effect."
Section 101(2) "requires the Court to make a judgment, rather than to exercise a discretion": (Ellis at [95]). That approach was confirmed by a further five judge court in DAO v R [2011] NSWCCA 63 at [40] (Spigelman CJ); [98] cf at [171] - [173] (Simpson J).
46In an evaluative judgment, the criterion is identified by the applicable statute or the general law.
47"Probative value" is defined in the Dictionary to the Evidence Act:
"Probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
No guidance is given as to the meaning of the adjective "significant". It does not mean "substantial". It has been held to mean something more than mere relevance, but something less than a "substantial" degree of relevance. It has also been held that the evidence must be "important" or "of consequence", recognising that:
"The significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." (R v Lock (1997) 91 A Crim R 356 at 361 per Hunt CJ at CL;)
48In AW v Regina [2009] NSWCCA 1 Latham J (Bell JA and Fullerton J agreeing) said at [47]:
"47 ... The evidence must have significant probative value, that is, it must be evidence that is meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones. ... It must be more than merely relevant, but may be less than substantially so ...
The question for the trial judge was whether the evidence was important in establishing the facts in issue ..."49The issue which divided the Court in R v
Anna Zhang [2005] NSWCCA 437; 158 A Crim R 504 does not arise in this case because on either test the evidence was admissible. There Simpson J placed emphasis upon the word "could" in the definition of "probative value" and said:
"139 ... evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible."
50In that case Basten JA (in dissent) identified the question under s97(1)(b) as whether the degree of impact that the tribunal of fact could rationally regard the tendency evidence as having on the probability of the existence of a fact in issue, is "significant". At [46] in Zhang Basten JA said:
"[46] ... It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of "probative value" requires such an exercise. That conclusion follows from the definition of "probative value" in the Dictionary to the Act, namely "the extent to which the evidence could rationally affect the assessment of the probability" of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98."
51R v Ford [2009] NSWCCA 306; 273 ALR 286 provided guidance as to the meaning of "prejudicial effect" as follows:
"56 The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful the evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD(1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen[1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J. In R v Suteski[2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199
[116], Wood CJ at CL (with whom Sully and Howie JJ agreed) said that the prejudice referred to in section 137 meant "damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves".
...
58 The same concept, of evidence being prejudicial if it involves a risk of an unfair trial, has been adopted in relation to section 101(2). In R v RN [2005] NSWCCA 413, this Court (Sully J, with whom Grove and Howie JJ agreed) adopted, as expressing the essence of the task called for by section 101(2), the statement by McHugh J in Pfennig v The Queen(1995) 182 CLR 461 at 528-9:
"If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.""
52The following statements of principle concerning tendency evidence are helpful. [A number of cases cited and referred to R v Alexander Cittadini [2008] NSWCCA 256; 189 A Crim R 492; Regina v Li [2003] NSWCCA 407; R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308]
 
Colquhoun No.1
[2013] NSWCCA 190, 22.8.2013
Evidence Act 1995 s 97 – conviction appeal - child sexual assault – CDs containing photos and videos of V at outdoor activities with A – close-ups of V in swimming costume and V’s crotch area and body - CDs admitted into evidence – A submitted CDs were not relevant except to show sexual interest of A in V therefore amounted to tendency evidence which was inadmissible, in the absence of compliance with s 97 - Crown submitted evidence admissible as context evidence eg as independent support for V’s evidence of recreational activities with A, and did not suggest any sexual interest - Crown implicitly accepted if evidence did suggest sexual interest, compliance with ss 97 and 101 would have been required, or trial judge would have had to direct jury it could not use the evidence to draw an inference of such sexual interest, that is, not to use it for a tendency purpose - No such direction given or sought at trial.
Held: Evidence should not have been admitted. Jury invited to engage in impermissible tendency reasoning. Conviction quashed. Appeal allowed.
([25]-[27]: Evidence admissible for context purpose showing V and A in enjoyable outdoor activities and thus support V’s assist in understanding why V associated with A. However many photos did not serve this purpose showing close-up photos of V wearing only boxer shorts or a swimming costume, with many photos of his body. Crown emphasised this character of the photos in cross-examination of V’s mother and closing address. This was capable of carrying implication that A’s interest in V was of a sexual nature. A similar approach to the CDs was evident in judge's Summing-Up.)
 
FEW
[2013] NSWCCA 1486, 10.10.2013
Evidence Act 1995 s 97 – Murder – victim 2 year old child of Accused’s partner – Alleged that victim died from fatal head injury deliberately inflicted by the accused or accidentally sustained when, on the accused's case, the child fell from a pram – evidence proposed to be adduced by accused concerning behaviour of deceased child's mother - Tendency of child's mother to display violent behaviour where frustrated or feels out of control - evidence as follows: (a) after heated arguments with the child's father she punched walls and a cupboard door; (b) lost control and punched her mother to the face causing bruising when her mother was in a wheelchair ; (c) tightened the straps on the child's pram to restrain the child at which time she stated she did not care how tight the straps were or if they bruised the child. On another occasion, at about the same time, physically pushed the child back into the pram by holding her face or placing her hand over the child's face and forcefully pushing her backwards into the pram.
Held: Evidence particularised in paragraphs (b) and (c) above is admissible as tendency evidence. I am not satisfied that the evidence at (a) qualifies for admission as tendency evidence.
 
Hadchiti
[2013] NSWSC 1726, 30.10.2013 (Schmidt J)
Evidence Act 1995 s 97 – Murder - A seeking to lead evidence in relation to victim’s character, reputation and conduct – tendency of V to engage in violent conduct - first incident in May 2002, when V engaged in a physical altercation with a juvenile, during which V elbowed an elderly lady in the head - second incident in 2008, when V involved in a car chase and reversed car into a police vehicle - evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted - whether evidence has significant probative value - whether evidence admissible.
Held: First incident – evidence not admissible. The evidence was that the lady who V hit with his elbow and knocked over knew V and declined to press any charges, because she considered that she had not been hit deliberately, but had been struck because she was in the way.
Second incident – evidence admissible. Use of a motor vehicle as a weapon did have capacity to be significant to establishing the facts in issue in this case, when considered together with the other tendency evidence as to which there was no issue between the parties. Evidence could rationally affect assessment of the probability of whether A acting in self defence when wound which led to V’s death was inflicted. Evidence had significant probative value.
 
Paterson (No.1)
[2014] NSWSC 29 (Bellew J)
Evidence Act 1995 s 97 – Murder - female victim found sexually assaulted and based to death in remote park area – DNA suggested more than one male involved in sexual assault – Crown sought to lead evidence of argument between accused and girlfriend over his admission to having had consensual group sex on one occasion
Held: evidence excluded – reference to group sex on one occasion only – reference to consensual activity – time distance
 
Sokolowskyj
[2014] NSWCCA 55
Evidence Act 1995 s 97 – sexual offences – offender convicted of indecently assault 8y girl in parents room while shopping – Crown permitted to tender evidence that offender had history of masturbating in public as tendency evidence – tendency to behave in inappropriate sexual manner in public
Held: evidence should not have been allowed – too general and marked dissimilarity – no significant probative value
 
RH
[2014] NSWCCA 71
Evidence Act 1995 s 97 – child sexual offences - Temporal nature of tendency evidence - evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty - conduct admitted by appellant against L occurred in 2005 to 2006, conduct against K was in 2003 and conduct against J was 1989-1993 - Where acts are sequential and occur in a confined time period, evidence of tendency can be probative – A submits acts in question did not occur within a confined time and, in particular, that the tendency evidence included acts subsequent to those charged – A submits probative weight of that evidence was less than if the acts relied on as tendency had been prior to that of the relevant counts.
Held: Appeal dismissed. Tendency evidence as a whole had significant probative value and substantially outweighed prejudicial effect. Tendency evidence in relation to K not an invitation to engage in an impermissible process of reasoning for the jury to be asked to conclude that, if the jury were satisfied that the admitted conduct towards L in 2005-2006 established beyond reasonable doubt the tendency claimed by the Crown, then it was likely that the appellant had a similar tendency a mere 2-3 years' earlier (when the incident of which K complained occurred) - Given that the gaps between the assaults were explicable if the tendency was, as the Crown contended, one that related to girls of a particular age range, this was precisely the kind of evidence that in SK the Court accepted could be relevant and of probative value: R v SK; SK v R [2011] NSWCCA 292
 

Bryce [No.2]

[2014] NSWSC 498 Beech-Jones J

Evidence Act 1995 (NSW) s. 97 – murder – murder of partner – tendency notice from accused – seeking to admit evidence of propensity of victim to behave aggressively and self harm – relied upon police reports and reports from, Justice Health and Corrective Service

Held: evidence allowed – evidence sufficient to suggest victim could have been involved in violent confrontation with someone other than accused in lead up to death – also supports propensity to self harm

 

Saoud

[2014] NSWCCA 136

Accused charged with two sexual assaults on two different female employees 21 months apart

Whether 'significant probative value' requires similarities – recent Victorian case Velkoski [2014] VSCA 121 held difference in Victorian and NSW application of test – held NSW cases did not require any similarities between tendency evidence and alleged offence – do not need to decide if Victorian case correct (although implied criticism) – held basic propositions at [37]-[48]

  • 'striking similarities' a common law phrase and can distract from true test of 'significant probative value'
  • focus on connection between tendency evidence and elements of offence
  • NSW cases do not remove requirement of similarity of commonality of features

tendency evidence that is used to establish conduct will almost inevitably have similarities with elements of offence (see also [28])

In this case the tendency evidence was relevant only to the question of whether the conduct occurred – would be unusual for evidence of acts with another complainant to be relevant to question of consent – at [22]

Combination of similarities in circumstances of two offences establish significant probative value – [49]-[53] – no identification of any prejudice beyond that inherent in hearing allegations from two separate complainants – no deviant behavior, uncharged acts, plethora of acts or issues of contamination of collaboration

 

MM
[2014] NSWCCA 144
Sexual offences on sister – s.5F appeal – respondent had pleaded guilty to old sexual offences committed on sister when she was 10-11y – charged with sexual offences against sister five years later – TJ rejected evidence of early offences as tendency - accepted significant probative value but found outweighed by prejudice under s.101(2)

Evidence of sexual assault as a child highly probative to context of offence - explained why accused would sexually assault complainant as an assault and reaction of complainant at [44]-[47]

Prejudice under s.101(2) same test as under s.137 – must be unfair prejudice such as 'provoking some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves' – TJ failed to identify relevant prejudice or consider whether could be dealt with by directions – [43], [48], [54]
 
JG
[2014] NSWCCA 138
Old sexual offences – Crown led tendency evidence – trial judge at first instance allowed evidence – trail aborted and second trial judge considered matter under s.130A Criminal Procedure Act – invited to consider credibility of testimony of witnesses given at earlier aborted trial but declined

At [104]-[106] - credibility of witnesses as demonstrated by evidence irrelevant to question of probative value – capacity of evidence only question - no other element of evidence relevant to decision
 
Campbell
[2014] NSWCCA 175
Murder – additional comments in relation to standard of proof for tendency evidence

Per Simpson J at [331]-[333] – nothing in Evidence Act requires tendency evidence to be established beyond reasonable doubt but not matter that needs to be decided in this case - Bathurst CJ at [259] – reserve consideration of whether direction unduly favourable to accused - Hidden J agreed with 'additional remarks' of Simpson J

Jones
[2014] NSWCCA 280
Sexual offences – accused of sexually assaulted three stepsons – interlocutory appeal against decision of trial judge to allow all counts to be heard together – to allow tendency evidence from each complainant.
Appeal dismissed on basis trial judge did not err in finding no evidence of concoction or contamination – other grounds of appeal not relevant but observations made.
Application of Hoch test that evidence must be excluded if evidence reasonably capable of explanation on basis of concoction – common law test not statutory – application under Evidence Act problematic – [64]-[75]
Trial judge held concoction / contamination irrelevant because goes only to credibility or reliability of evidence which must not be considered under Shamouil - overstated matter in holding Shamouil prohibited consideration of credibility under any circumstances – while DSJ and XY support conclusion that no part of court's role to make findings as to weight or determine whether jury likely to accept or reject evidence do accept that when assessing probative value of evidence can consider competing inferences – this may include contamination / concoction in circumstances of case – [86]-[90]

Elomar
[2014] NSWCCA 303
[347]-[348] – court must determine for itself whether evidence tendency evidence – start by considering what is to be established by the evidence.
What tendency evidence is:
[356] Notwithstanding the numerous occasions on which appellate courts have had to consider the admissibility of evidence tendered as tendency evidence, there has been relatively little analysis of what tendency evidence actually is. Tendency evidence is a species of circumstantial evidence.
[357] It is necessary to look to the terms of the legislative provisions.
[358] Stripped to its essentials for present purposes, what s 97 of the Evidence Act provides is:
"Evidence of the character, reputation or conduct of a person ... is not admissible to prove that a person had a tendency ... to act in a particular way ...
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 ... to have a particular state of mind ..." (bold added)
The prohibition is thus on evidence tendered to prove that a person has or had:
(i) a tendency to act in a particular way; or
(ii) a tendency to have a particular state of mind.
Section 97(1) does not contain a prohibition on evidence tendered to prove that a person in fact acted in a particular way, nor on evidence tendered to prove that a person in fact had a particular state of mind.
[359] As Simpson J has said on previous occasions (for example, Gardiner at [124]), proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.
[360] The process of reasoning is:
on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
it can therefore be concluded or inferred that the person had a tendency to act in that way;
by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.
Alternatively:
on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.
Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.
[363]-[372] - Evidence of previous state of mind may constitute tendency evidence of the state of mind of the accused at the time of the alleged offence – but will not constitute tendency evidence where it is a continued state of mind (eg continuing belief in a cause) – then it is evidence proving a person in fact had a state of mind – in this case 'tendency evidence' actually tendered to prove accused supported violent Islamic Jihad both in the past and continuing at the time of the offence
 

Sumpton (No.2) 
[2014] NSWSC 1440, Hamill J 
Murder of Asian female – Crown case alleged sexually motivated - Tendency evidence went to particular state of mind, namely a sexual interest in women of Asian appearance.

Evidence of previous partner that accused watched Asian porn - evidence of considerable significance – not diminished by fact that accused was in relationship with non-Asian partner and that it was only part of sexual behaviour of accused – no prejudice in use of adult pornography

Evidence of neighbour that accused told him he used an Asian prostitute on one occasion - evidence not diminished by fact that it was one occasion only

Evidence of young female Asian friends on Facebook - no significant probative value – no real evidence of context of relationship – could cause prejudice by distracting jury – friendships with younger Asian females – directions would only highlight issue.

 

El-Haddad 
[2015] NSWCCA 10 
Evidence Act 1995 (NSW) ss 95, 97, 98, 101 Five charges of drug importation heard together whether evidence for each charge properly used as tendency / co-incidence evidence

Sections 97 and 98 preclude use of evidence for tendency or co-incidence purposes - this may mean the evidence is not admitted, or, where the evidence is admitted for other purposes (as in the case a joint trial), direction to jury against improper use: [38]-[45]

Relationship between the "tendency rule" and the "coincidence rule" – notice must be as specific as possible as to the state of mind or act seeking to be proved so court can make assessment as to probative value: [46]-[56].

'Significant probative value' test – unhelpful to restate it especially with reference to 'less than substantial' – consider what is significant in context of case – relationship between evidence and issues [64]-[66]

Generality of stated tendency or co-incidence will reduce probative value – increased specificity will make it more likely to have probative value [70]-[72]

Dissimilarities can reduce probative value where they are relevant: [74]-[75]

 

Castaneda 
[2015] NSWSC 964, Wilson J 
Murder of male partner – evidence of being told of deceased violent conduct towards previous female partner relevant and admissible as tendency evidence – question of self defence

 

Basanovic 
[2015] NSWSC 1092, Davies J 
Evidence of knowledge by accused of ability of deceased to arrange for other persons to deal with people either positively or negatively according to what the deceased requested relevant and admissible as tendency evidence – also relevant and admissible to support evidence of belief of accused when he shot victim

 

Steele 
[2015] NSWDC 100, Berman DCJ 
Evidence Act 1995 (NSW) s.97, 101 – sexual offences – consideration of admissibility of tendency evidence from several complainants – mothers of complainants had passed on to daughters some information of allegations from other complainant's – effect of possibility of concoction and contamination on admissibility

Expressed strong opinion that Hoch does not apply and NSW cases finally adopting this approach – question of concoction matter for jury where witnesses deny it – did consider whether unconscious contamination

Comment From Michael King - More evidence of the death of Hoch. Heydon QC had much to say about this in the 2014 Paul Byrne Lecture. - Berman DCJ does appear to be somewhat overstating the legal significance of Jones (restricted decision available on JIRS) as the CCA was not actually called on to decide the matters (such as 'decided' in Steele) and articulated by Blackmore DCJ at first instance.  The accused fell at the first hurdle and strictly the rest is obiter 'one voice' or not. - But the thinking in this case does appear to be the face of the future, unless the High Court favours the Vics in the Shamouli/XY v Dupas/Velkovski arm wrestle. - Note however that cases in which there has been conscious (or perhaps unconscious) contamination of evidence - of a material kind (see Hodgson JA in BP) are probably not affected by this line of thinking

 

McIntosh 
[2015] NSWCCA 184 
Sexual offences – admissibility of evidence of brother and friend

Held: per Basten JA. Hidden and Wilson JJ agreeing

when assessing probative value consider capacity of evidence not reliability or credibility - not required to disregard inherent implausibility but contestable questions of credibility and reliability are for jury – concoction relates to reliability and credibility – not relevant to significant probative value test [42]-[48]

Concoction suggests deliberate fabrication – contamination may involve unconscious process of suggestion [46]

Evidence of the 'existence of a relationship between the witness and the accused was an integral part of the evidence to be admitted as tendency evidence. If the evidence of specific incidents was itself admissible as tendency evidence, those aspects which rendered it plausible, in the sense of being comprehensible, could not properly be excluded.' [68], [72]

 

R v A2; R v KM; R v Vaziri (No. 18) [2015] NSWSC 1625 
[2015] NSWSC 1625 
Evidence Act 1995 (NSW) ss 97, 98, 101  – female genital mutilation – two victims – Crown seeks to have the evidence cross-admissible as between the counts for each victim

Held: Evidence admissible.

The principles to be applied on this application are found in decisions including DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349; R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487; R v MR [2013] NSWCCA 236 and El-Haddad v R.

There is an overlap between the tendency and coincidence rules, and that there is an awkwardness in separating tendency and coincidence evidence where there is no dispute as to the identity of the alleged offender, but what is in issue is whether the offences occurred: El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at 107 [46].

 

Aravena 
[2015] NSWCCA 288 
Sexual offences – recklessly inflicting actual bodily harm with intent to have sexual intercourse Crown adduced tendency evidence of a 2006 incident where appellant pleaded guilty to indecent assault.

[82]-[89] fact that tendency evidence was single incident and lengthy time period between tendency evidence and alleged offence relevant to but not determinative of assessment of probative value

 

El-Hilli 
[2015] NSWCCA 289 
Dishonesty offences – in this case evidence of past fraud offences not tendency evidence – direct evidence of financial circumstances of accused (ie could not have had the wealth he claimed)

 

El-Ali 
[2015] NSWCCA 300 
Sexual assault on 14y girl – tendency evidence of sexual interest in other girls – prejudicial effect of plethora of material for single offence sufficiently alleviated by directions to jury

 

Maybir (No.7)  
[2015] NSWSC 1742 RA Hulme J  
 Evidence Act 1995 (NSW) s.97murder – child victim - admissibility of evidence A had tendency to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them – admissibility of evidence A had a tendency to cause harm to young children in his care or to be indifferent to harm caused – where evidence is already before the jury as context evidence - admissibility of evidence A had a particular state of mind toward the deceased – an attitude of disdain dislike and disrespect – anger toward deceased – where evidence already before the jury as context evidence.

Held: Evidence has substantial probative value – evidence admissible.

Ruling that certain evidence by accused's former wife may be used as evidence to establish these asserted tendencies: Maybir (No 2) [2015] NSWSC 1737.

 

Maybir (No.1) 
[2015] NSWSC 1736 per RA Hulme J 
Murder of a child - admissibility of evidence accused had punched wall and window in frustration when it 'all got too much for him'

Evidence too general to have significant probative value - R v Ford [2009] NSWCCA 306; 201 A Crim R 451, R v Maybir (No 2) [2015] NSWSC 1737, Sokolowskyj v R [2014] NSWCCA 55

 

BC 
[2015] NSWCCA 327 
Sexual assault - tendency evidence – offences committed on four young complainants when accused aged 11 - 28 years old – trial judge declined to order separate trials

Prejudice under s.101(2) – took Sokolowskyj at [48] out of context – prejudice resulted from lack of connection between tendency conduct and conduct constituting alleged offence – in some cases no prejudice in reasoning that if accused a particular sort of person (who demonstrated a particular tendency) then he is more likely to have committed the alleged offence [76]-[81]

When considering tendency evidence consider all the evidence [82], [87]

In this case trial judge did not find conduct and alleged offence similar – considered similarities when assessing probative value [97]

General prejudice can be dealt with by directions – need specific prejudice [110]

Relevance of concoction not settled [116]-[120]

 

DJW 
[2015] NSWCCA 164 (restricted) 
23 sexual offences against 6 children

Trial Judge considered whether real risk of concoction or contamination

Considered Jones [2014] NSWCCA 280 – Bellew J suggested concoction and contamination may be relevant in some circumstances – obiter only but agree - primary judge erred in determining issue of concoction or contamination separately from issue of significant probative value [39]-[43]

Allegations do not have to necessarily exhibit close similarity [56]

s.101(2) – cannot rely upon general prejudice – must identify a specific prejudice that cannot be dealt with by directions [58]-[63]

 

Hughes 
[2015] NSWCCA 330 
Sexual offences against four victims under 16 – tendency evidence further admitted from further six witnesses

[158]-[203] considered cases and legal principles

Purpose of tendency evidence - to provide foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject of the charge or charges: [160]

Significant probative value - question is whether jury could treat it as important in supporting inference of guilt [182]

Capacity of evidence not weight [162], [182]

Significant means important [163], [182]

Must consider alternative explanations inconsistent with guilt in assessing probative value [164]-[165], [182] (not common law test of no rational explanation consistent with innocence – [191])

Test is significant probative value – do not require 'underlying unity', modus operandi' or pattern of conduct' [166], [188] – rejected Victorian approach in Velkoski [2014] VSCA 121 [186]-[188]

Similarities are relevant to the assessment of probative value [167], [183] – greater the more likely court will find probative value [188] - different from requiring conduct in tendency evidence to bear similarities to alleged offence [183]

Tendency evidence does not need to show tendency to commit acts that constitute alleged offence – may be tendency to act in another way relevant to charge – relevance determined by same test as s.55 – could it rationally affect the assessment of the probability of the existence of a fact in issue [184]

Dissimilarities are not determinative – depends upon what the dissimilarities are [196]

Relevance of contamination / concoction – not necessary to decide in this case – Jones and McIntosh agree – affirmed in DJW – seem to suggest irrelevant unless of such a level as to effect capacity of evidence to bear significant probative value

S.101(2) is an evaluative judgment of the trial judge involving a balancing exercise [189]-[190]

Not the common law 'no rational explanation' test [191]

Prejudice is risk that jury will misuse evidence in unfair manner [192]

Can take into account effect of directions to jury [192]

 

Dent 
[2016] NSWSC 99 RA Hulme J 
Murder – charged with violent and fatal robbery of male in park – Crown sought to lead evidence of killing of two males in robbery in park 37y earlier as tendency and co-incidence evidence – time gap too great – no evidence of further violence during that time period – dilutes probative force – prejudicial effect of evidence that accused killed before

 

IMM 
[2016] HCA 12 
NTCCA – sexual offences - Appellant convicted of sexual offences against step granddaughter - Tendency evidence from complainant that appellant had stroked her leg on a separate occasion allowed to show sexual interest (under s.97) - Evidence of complaint to friend, aunt, mother and grandmother allowed (under s.137)

Whether tendency and complaint evidence wrongly admitted - Whether trial judge should have regard to credibility and reliability if evidence when assessing the probative value of evidence under s.97(1)(b) and s.137.

Result - Appeal allowed – French CJ, Kiefel, Bell and Keane JJ, Gageler agreeing as to the result – tendency evidence should not have been admitted

Test for probative value under Act

The key issue is the phrase 'if it were accepted' which is present in the relevance test under s.55 and missing from the definition of 'probative value' in the dictionary. Otherwise the test for both relevance and probative value is identical.

FRENCH CJ, KIEFEL, BELL and KEANE JJ - TJ does not consider reliability or credibility of evidence when assessing probative value

Considered that the missing phrase should be imported into the probative value test since both test are identical. This means a trial judge should assume the evidence will be accepted by the jury and must not consider questions of credibility or reliability in applying the test.

They further explain that evidence that is weak or fanciful may be rejected not because an assessment has been made as to its reliability or credibility but because it is unconvincing and does not have a high enough probative value [30], [50], [58]

The majority did refer to the question of concoction. They rejected the submission that it is "well-established" that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch –left consideration of impact of joint concoction to another time [59]

GAGELER J - TJ should consider reliability and credibility of evidence when assessing probative value

By contrast Gageler J found the absence of the phrase from the definition significant and felt compelled by language, structure and evident design of the legislation to find that the test for probative value includes a consideration of the reliability and credibility of the evidence. He also found the comment of McHugh J in Papakosmos (1999) 196 CLR 297 at [86] compelling.

NETTLE AND GORDON JJ (both Victorian) - - TJ should consider reliability and credibility of evidence when assessing probative value

Nettle and Gordon were also convinced that the absence of the phrase from the definition was significant and concluded there was no compelling reason to depart from the natural or ordinary meaning of the words in the statute which suggest that under s.55 the test involves assuming the jury accept the evidence while under s.97 the court should not make that assumption. They also indicated a 'logical preference' for McHugh over Gaudron J in Adam (2001) 207 CLR 96 at [60] [139]-[140], [172]

Tendency Evidence in this Case

FRENCH CJ, KIEFEL, BELL and KEANE JJ – tendency evidence wrongly admitted - Uncorroborated evidence from complainant will rarely have sufficient probative value to meet the tendency test

[62] In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

[63] Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

GAGELER J – tendency evidence wrongly admitted - Tendency evidence was not only uncorroborated but was within a context in which the credibility of the whole of the complainant's testimony was uncorroborated [107]

NETTLE AND GORDON JJ– no error in admitting tendency evidence - Evidence had significant probative value – no issues of reliability or credibility

 

Parker 
[2016] NSWSC 363 (Rothman J) 
Evidence Act 1995 (NSW) s.97, 101 – murder – female offender – killed her male partner - relationship evidence sought to be used for tendency to show aggression and use of knives – use of knife not in issue in the proceedings – prior incidents not clearly aggression by accused.  Question in relation to the so-called relationship evidence is that it is also sought to be used to show a tendency by accused:

  1. to resort to physical violence upon male partners with whom she is involved in a relationship, including the use of a knife to assault – when she became frustrated with them;
  2. tendency to be the dominant party in such a relationship; and
  3. to become aggressive and threaten violence when intoxicated and engaged in argument, particularly with and towards her partner.

Held:  Evidence inadmissible.  No substantive issue that the accused utilised a knife. Thus, a tendency to use a knife is not something that is in issue in the proceedings.  Each of the circumstances that amount to relationship evidence are themselves disputed issues.  Each of the circumstances is moot. The relationship evidence, being the evidence of the violence between the accused and the deceased, while relevant in the sense of s 55 and s 56, does not meet the tests under s 97 and s 101.

 

CJ 
[2016] NSWDC 110 per Whitford SC DCJ 
Evidence Act 1995 (NSW) s.97 – Recklessly cause GBH - Baby presented to hospital with injuries medical experts concluded were consistent with shaken baby syndrome - charged mother with recklessly causing GBH - Crown sought to lead tendency evidence from 14y neighbour (EP) that she had seen mother on one occasion in month prior to hospital admission handle baby in a way that 'correlates to some degree' with shaking behaviour (expert evidence establishes that shaken baby syndrome has a natural history that involves earlier shakings of a victim) – common ground that handling observed by EP could not and did not cause injuries – EP did not mention conduct at time of observation – only mentioned conduct in response to her mother's query "did you ever see (accused) shake the baby?" – when questioned by police initial demonstration of conduct benign, becoming more animated in response to further questioning - only other additional evidence of guilt is opportunity but no suggestion mother was the only person to have access to victim during time period in which injuries would have been inflicted

Held - Declined to allow evidence – no significant probative value

Tendency as Single Incident

At [48] - expressed concern that a single incident could constitute evidence of tendency but required to follow Aravena [2015] NSWCCA 288 at [85]-[88]

At [44] – in this case further weakened by fact that evidence of particular conduct charged is only mere access / opportunity – tendency evidence usually has additional evidence of the conduct charged

Weakness of Tendency Evidence

At [53]-[55] Weaknesses of tendency evidence in this case includes:

Single equivocal incident that 'could be' 'consistent' with shaking behaviour

Initial demonstration benign becoming more animated when pressed

Did not seem significant enough to witness to mention observation at the time and only raised it when questioned by mother

At [50]-[51] – this made evidence very weak – similar to the identification analogy adopted by the High Court in IMM [2016] HCA 14 at [50] – but not clear what is the purpose of the analogy – in particular how does one sensibly draw the line between evidence that is weak (and therefore to be considered in predictive and evaluative assessment) and evidence that is unreliable (and therefore beyond the scope of assessment)

At [57] – in this case will put aside these weaknesses as going to reliability and therefore not relevant

Assessment of Significant Probative Value

At [58] – quoted Spigelman CJ in Shamouil at [62]

"Evidence has probative value… if it is capable of supporting a verdict of guilty"

At [59] – this means evidence

…will be rationally or reasonably capable of supporting a verdict of guilty. The corollary in the context of a criminal trial is that the evidence must be rationally, or reasonably, capable of supporting a verdict beyond reasonable doubt.

At [62]-[63] - Evidence will have significant probative value if

"a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence": Hughes at [182]; see also DSJ [2012] NSWCCA 63 at [10] per Bathurst CJ

At [65]-[71] - In this case the probative value of the evidence too weak – combination of nature of tendency evidence and nature of overall case

tendency evidence a single incident

equivocal – range in demonstrations of observed conduct by witness

fact that conduct observed by witness did not and could not cause injury means dissimilarity between tendency evidence and charged conduct

fact that case depends solely upon tendency evidence and opportunity, in circumstances where others had access and opportunity and therefore reasonable hypotheses inconsistent with guilt necessarily cannot be excluded

At [69] - also noted that the argument that the tendency evidence was consistent with the natural history of shaken baby syndrome involved circular reasoning

It seems to me there is a fallacious circularity in the proposition that what EP observed was consistent with the natural history of baby shaking syndrome, which involves the assumption that it was (the accused) who shook the baby on the occasion resulting in the injuries. The prior handling is no part of a relevant "history" unless one assumes it was the accused who shook the baby on the occasion resulting in injury.

 

Matonwal and Amood 
[2016] NSWCCA 174 
Armed robberies – multiple counts – offenders arrested during one armed robbery – pleaded guilty to this offence – charged with further 5 armed robberies - s.5F appeal by Crown against refusal of trial judge to allow as co-incidence and tendency evidence of each armed robbery – Crown relied upon aspects of each robbery displayed in CCTV including clothing, use of weapons, cars and general size of offenders – trial judge refused to admit evidence as co-incidence on basis features were common to robberies in general

Held: trial judge erred by considering each alleged similarity individually and failing to consider in context of other Crown evidence at [75] – assessment by CCA concludes evidence if all but two robberies admissible as co-incidence evidence – not tendency evidence –fails to show persons committing offences were respondents

 

GM 
[2016] NSWCCA 78 (restricted) 
Section 5F - Respondent charged with sexual offences against four child complainants – Crown appeal against orders for separate trials and refusal to allow tendency evidence

Held: appeal allowed

Per Hoeben CJ at CL (Hall J agreeing)

Summary of cases where issue is relevance of concoction / contamination

[86] – most comprehensive statement as to the law under s.97 and 101 is Hughes [2015] NSWCCA 330 at [158] – [204].

[89] First consider DSJ [2012] NSWCCA 9 at [8]-[11]; [78]-[81]

[90] although a coincidence casse applied to tendency: JG [2014] NSWCCA 138 at [105]

[91] The issue of where in the process of reasoning the risk of concoction and contamination should be considered was dealt with directly in Jones [2014] NSWCCA 280 at [76]-[77], [85]-[90]

[92] Also considered in DJW v R [2015] NSWCCA 164 at [40]-[44] (restricted)

[93] Issue arose again in McIntosh [2015] NSWCCA 184 at [35]-[36]; [42]-[49]

[94] Most recent statement re concoction / contamination Hughes at [201]-[204]

[95]-[96] IMM [2016] HCA 14 applied Shamouil but did not consider application of s.101 although did reject Hoch rule under s.101 at [57]-[59]

Errors made by Trial Judge

[100] concoction relevant to determining significant probative value – error to consider separately

[101]-[104] – erred in implicitly implying Hoch test of 'no rational view' when considering possibility of concoction and contamination in approach to s.101

[105]-[107] – erred in making assessment of credibility and reliability of evidence

Appeal Court consideration of Issues

[109] Correct test under s.101 not without difficulty – DJW at [41] and McIntosh at [44], [47]

[111] Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value.  Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible.  In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.

[114]-[124] – to the extent to which the common law factors of relationship, opportunity and motive still relevant they did not result in inherent implausibility or powerful competing inference – opportunity to discuss the matter between complainants not sufficient especially where can be tested at trial – in this case material suggesting concoction or contamination matter for jury especially where involve findings of reliability or credibility – no real evidence of similarity between accounts by different complainants – matter can be dealt with by directions to jury as to possible contamination

[119]-[120] – a suggested scenario where contamination could give rise to inherent implausibility could be where multiple victims formed a group which regularly met to discuss issues

Button J

Agreed with Hoeben CJ at CL but concluded in relation to role of asserted concoction or contamination in assessing probative value with regard to tendency or coincidence evidence and whether decision in IMM [2016] HCA 14 supersedes jurisprudence that has developed Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 in 2006 and XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 in 2013 that unless and until High Court speaks more determinatively and adversely with regard to jurisprudence developed by this Court content to regard it as remaining applicable to the task of trial judges. 

 

 

Droudis (No.13) 
[2016] NSWSC 1350 (Johnson J) 
Evidence Act 1995 (NSW) ss.97, 55, 137, 135(c) – Murder – Judge alone trial - Crown case that A, at behest of M, stabbed V to death - Crown sought to lead evidence of tendency on part of A that A had a particular state of mind arising from her belief in M's spiritual superiority; because of this state of mind, A acted in a particular way, namely that she engaged in socially and morally reprehensible acts at behest of M - Crown contends tendency evidence bears upon a fact in issue in the trial, namely, the identity of the person that murdered V – defence objection under s 135(c) that evidence might 'cause or result in undue waste of time.'

Held: Evidence admissible.

s 55:  relevant for the purposes of ss.55-56 to the resolution of the principal fact in issue in the trial - nature and dynamics of the relationship between M and A are relevant, being capable of shedding considerable light upon the alleged motive of A (and M) and the state of mind of A in acting in different ways at the behest of M. Evidence forms part of a multi-facetted circumstantial case which by Crown.

At [48]-[49]: The test of relevance - Enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. Possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39]. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40].

s 97: evidence has "significant probative value" (referred to -  Elomar v R [2014] NSWCCA 303; 316 ALR 206; IMM v The Queen [2016] HCA 14; 90 ALJR 529; Hughes v R [2015] NSWCCA 330; BC v R [2015] NSWCCA 327)  - had regard to not only this tendered evidence, but also other evidence which Crown will adduce in in support of the circumstantial case against A.

s 137: At [52]-[55]:   Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM at 538 [47].

 The danger of "unfair prejudice" in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 280 [196].

s 135(c)  The tendered evidence to which objection is taken is almost entirely in the form of video, audio or documentary evidence. Time required for tender of the challenged evidence will not be excessive in the context of this trial - probative value of evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

At [57]-[60]: s 135 is based upon assumption the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is "substantially outweighed" by a "danger" of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].

The apparent purpose of s.135(c) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue - "once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of 'undue waste of time'": Dyldam Developments Pty Limited v Jones at [93].

s.135(c) has equal application to a Judge-alone trial. 

Qaumi and Qaumi (No.2) 
[2016] NSWSC 1487 per Hamill J 
Murder – Crown alleged accused ordered witness L to shoot victim in his home – contract killing – application to tender tendency evidence – previous trial alleged accused ordered same witness to kill another person in their home – accused admitted killing (from earlier trial) but alleged self-defence – responding to belief potential victim seeking to kill one of them – waiting for verdict in trial

Held – evidence admissible – significant probative value as tendency evidence that brothers previously engaged witness to carry out shooting – prejudice from such evidence much reduced because judge alone trial

 

O'Callaghan (restricted) 
[2016] NSWCCA 98 
Sexual offences – appeal against decision of trial judge to allow joint trial and tendency evidence – accused alleged to have enticed 14y girl to house – smoked and drank together – complainant lay down on bed and awake to find sexual intercourse taking place – 4-5y later followed 11y female in car and invited her to take a lift – exposed penis and was masturbating during conversation

Held – appeal allowed – trial judge failed to identify common threads, assess whether probative value substantial or carry out weighing exercise under s.101 – probative value not significant primarily because of time gap between picking up first complainant and sexual activity – probative value did not outweigh prejudice on same basis as Sokolowskyj

 

 


 
Section 98: The coincidence rule

Lock
(1997) 91 A Crim R 356 (NSWSC Hunt CJ at CL)
Evidence Act 1995 (NSW) s.98 stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbing of victim by accused.
Held: “significant probative value” means more than mere relevance but something less than substantial degree of relevance - important, of consequence - assessment of probative value will require assessment of circumstances surrounding fact in issue and circumstances surrounding tendency evidence - following Pfennig only if there is no rational or reasonable view of the evidence consistent with innocence will probative value outweigh prejudicial effect - test applies to both tendency and co-incidence evidence in this case not enough detail as to circumstances surrounding prior incidents to be satisfied of probative value.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.98 - importation of drugs - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting the presence of the two co-accused in Sydney on previous four occasions
Held: evidence admitted - significant probative value substantially outweighing any prejudicial effect

White
NSW CCA [336] 20.10.1999
Evidence Act 1995 s.98 - child sexual assault - three complainants - evidence against first complainant admitted in case involving other complainants.
Held: no error in judge failing to direct jury they should not use coincidence evidence as tendency evidence - accused did not seek a direction - extent to which matters which have not played part in a trial should be brought to the attention of jury for purposes of telling them to exclude such matters should be approached with caution - direction adequate.

Phillips
NSWSC (Bell J) [1175] 17.12.1999
Evidence Act 1995 - ss.97, 98 - murder of infant child - 8m son found in cot with breathing difficulties - post mortem found cause of death either SIDS or induced asphyxia - Crown sought to lead evidence of previous deaths of two children and life threatening incidents involving hospital visits for 4 of 5 children - Crown argued proved death of third child caused by induced asphyxiation - tendency evidence showing accused tended to conduct herself in manner detrimental to children.
Held: no expert prepared to exclude hypothesis consistent with innocence for each incident - all incidents had possible innocent medical explanations - evidence did not exclude reasonable hypothesis consistent with innocence - evidence inadmissible

GLC
NSW CCA [90] 31.3.2000
Evidence Act 1995 - s.98 - sexual offences against two complainants - Crown sought to lead evidence of both complainants in relation to all counts.
Held: Crown conceded evidence did not satisfy ss.97 or 98 requirements - offences occurred 4-5 years apart - no striking similarities - 5 year age difference in complainants.

Martin
NSW CCA [332] 25.8.2000
Evidence Act 1995 - s.98 - sexual intercourse without consent - climbed into bed with sleeping woman in lodge and forced intercourse - Crown led evidence that appellant had tried to do identical thing to another woman 15-30 minutes earlier
Held: evidence admissible - probative because could rationally affect issue of whether appellant cared about consent of complainant.

Bell
NSW CCA [2] 1.2.2002
Evidence Act 1995 - s.97, s.98 - admission of tendency and/or coincidence evidence - multiple sexual offences - evidence from number of complainants - whether danger of concoction - whether concoction basis for excluding evidence
Held: Evidence properly admitted - no reasonable possibility of collusion or concoction between complainants.

F
(2002) 129 A Crim R 126; NSW CCA [125] 9.4.2002
Evidence Act 1995 - s.97, s.98, s.101 - sexual offences against 4 school students by gym teacher - appeal against decision to join three complainants - Crown appeal against decision to order separate trial in relation to one complainant
Held: central issue whether evidence of each complainant admissible as tendency or coincidence evidence in relation to other complainants - principles and tests considered - appeals dismissed.

WRC
(2002) 130 A Crim R 89’ NSW CCA [210] 7.6.2002
Evidence Act 1995 - s.98, s.101 - sexual offences by teacher against 2 school boys - lengthy delay - neither complainant knew each other - TEL made complaint to school but no further action - CPS commenced civil action reported in local paper - mother of TEL advised son of article and he contacted solicitors of CPS - admissibility of evidence of each complainant at trial of other complainant
Held: test under Pfennig (1995) 182 CLR 461 highly relevant to s.97, 98 and 101 - if first assume all other evidence leaves jury with reasonable doubt, propensity evidence must be such that, when considered with other evidence, there will be no reasonable view consistent with innocence of accused - propensity evidence must be such that, when added to other evidence, eliminates reasonable doubt - probative value of co-incidence evidence may arise from fact that 2 or more persons independently gave evidence of related events where it is improbable that they would have given accounts with such similarity unless accounts had foundation in fact - possibility of concoction or contamination must be removed - no error here in admitting evidence

Folbigg
NSW CCA [17] 13.2.2003
Evidence Act 1995 - s.98 - accused charged with murder of four infant children - each child died on separate occasions while in care of accused - medical evidence suggests asphyxiation as possible cause - application for separate trials rejected on basis evidence of each death admissible as coincidence evidence
Held: Pfennig (1995) 182 CLR 461 test continues to apply until High Court says differently - evidence on individual counts would not convict, but when evidence of
other deaths considered no other rational result than guilt

Ellis
(2003) 58 NSWLR 700; 144 A Crim R 1; NSW CCA [319] 5.11.2003
Evidence Act 1995 (NSW) s.98 – break enter and steal offences – judge allowed joint trial of 11 counts on basis evidence of each offence would be admissible against other counts – unusual and consistent modus operandi used – 5 judge bench convened to settle conflict over interpretation of s.101 test – whether common law test of Pfennig (whether no rational view consistent with innocence of accused) applies to statutory formula that probative value of evidence must substantially outweigh prejudicial effect
Held: appeal dismissed - common law test (no rational explanation consistent with innocence) replaced by statutory formula (balance probative value against prejudicial effect) – Pfennig does not apply – Trial judge did not err in applying statutory test not common law test

Mason
(2003) 140 A Crim R 274; NSW CCA [331] 17.12.2003
Evidence Act 1995 s.98, 101 – armed robbery – evidence of other robberies and theft offences committed by appellant tendered as co-incidence evidence
Held: evidence correctly admitted – circumstances of offence substantially and relevantly similar – probative value of evidence extremely high and substantially outweighed any prejudicial effect – Ellis followed – statutory balancing test of weighing probative value against prejudicial effect
 
Folbigg
[2005] NSWCCA 23, 17.2.2005
Evidence Act 1995 (NSW) s 55 – Manslaughter, Intentionally inflict GBH, 3 x Murder – Mother killed four babies over ten years – Suffocated each child in spontaneous burst of anger – Earlier attack on second child caused blindness – Whether separate trials should have been ordered for each charge – Whether probative value of evidence of each charge outweighed by prejudice
Held: dismissing appeal – individual incidents constituted co-incidence evidence although not independently proved – substantial similarities – significant probative value – no basis for separate trials

Watkins
NSW CCA [164] 1.6.2005
Evidence Act 1995 (NSW), ss 97, 98 – defrauded body corporate as officer thereof – deposited cheques totaling over $2M into own account signed by one of the company directors – Crown tendered evidence of 37 counts of larceny as a clerk for which A convicted in 1985 and the similarities between the two – points of dissimilarity however overlooked – prejudicial effect outweighed probative effect – though very strong Crown case, but proviso not applied
Held: appeal allowed and retrial ordered
 
Fletcher
NSW CCA [338] 23.9.2005
Evidence Act 1995 (NSW), ss 97, 98, 101 – Catholic priest sexually abused 13-14y altar boy from the church– tendency and coincidence evidence from another altar boy/alleged victim – significant differences between conduct alleged to have occurred with two boys – 4 years elapsed between events but significant similarities – difficulties constructing s101(2)
Held: appeal dismissed by majority – consideration of principles behind admission of tendency and co-incidence evidence – similarities not restricted to mode of sexual offences – similarities could be found in circumstances such as use of position as parish priest –open for TJ to find probative value not outweighed by prejudicial effect under s.10.
 
Milenkovic
NSW CCA [379] 27.9.2005
Evidence Act 1995 (NSW), s98(1)(b) – armed robbery – appeal by Crown against refusal of TJ to allow evidence of involvement of accused in armed robbery to be used as co-incidence evidence in second armed robbery offence – same car used in each robbery
Held: appeal dismissed – s.98(1)(b) requires significant probative value not just mere probative value – involvement of same car insufficient
 
Stevens
NSW CCA [252] 28.8.2007
Evidence Act 1995 (NSW), s98 – supply cocaine – appellant convicted of two supplies on two different occasions – on first occasion police operative watched drugs taken towards car registered to appellant – note returned requesting second delivery – second supply made to appellant subsequently arrested in possession of drug – whether trial judge erred in using second supply as co-incidence evidence for first supply
Held: appeal dismissed – events of each supply substantially and relevantly similar – no error
 
Gonzales
(2007) 178 A Crim R 232 at [21]-[26]
Evidence Act 1995 (NSW) s 98
Held: following Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted
 
Smith
[2008] NSW CCA 247, 30.10.2008
Evidence Act ss.97, 98 – sexual offences against young girl – complainant staying at respondents’ house with father and sister – indecent assault and digital penetration while complainant and other children sleeping on lounge room floor – TJ declined to admit evidence of prior convictions for child sexual assaults on basis circumstances were identical but actual allegations different – earlier offences included only fondling of vagina and no touching of other parts of body
Held: appeal allowed – in fact actual allegations similar – evidence of earlier convictions demonstrated respondent’s sexual interest in young girls, fondling of vagina and willingness to commit offences in room with other people
 
Ceissman
[2010] NSW CCA 50, 22.3.2010
Evidence Act ss.97, 98 – Crown appeal s 5F Criminal Appeal Act 1912 against ruling by trial judge rejecting Crown’s application to introduce tendency and co-incidence evidence - 22 robbery offences arise out of five separate criminal enterprises - Alleged co-offender,
McC, pleaded guilty and relied upon by Crown to give evidence that R involved in offences.
Held: Judge erred in rejecting evidence; Ruling set aside. The evidence of the “related events” is capable of rationally affecting the probability that the offences were committed by the same offenders (i). The test is one of capability, that is, is it open to the jury to conclude from the “related events” that the offences were committed by the same offenders : R v Shamouil [2006] NSWCCA 112 at [61] to [65]. The answer to that question in this case is yes. The second stage of the analysis is to combine the “related events” with the other evidence relied upon ((ii) to (iv)) and pose the question, having regard to all of the evidence, is the jury likely to assign the evidence of the “related events” significant probative value. The answer is yes. R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at 537.
 
Bryant
[2011] NSW CCA 26, 2.3.2011
Evidence Act ss.97, 98 –
Held: O’Keefe [2009] NSWCCA 121 a good example of “the difference between coincidence and tendency evidence in its capacity to identify a particular person as the offender in the commission of a particular offence
 
Wilcox
[2011] NSW CCA 42, 22.3.2011
Evidence Act 98 – two armed robberies of clubs with co-offender armed with sawn off rifle and pistol – trial judge refused separate trials and allowed each count as co-incidence evidence
Held: remarkable similarities – no error in admitting evidence
 
L’Strange
[2011] NSW CCA 89
Evidence Act 1995 (NSW) s 98 – BES and Conspiracy – crown alleged accused joined conspiracy to rob house of drug dealer then joined in robbery of second house when initial plan abandoned – Crown led evidence that accused previously involved in plan to rob drug dealer although no charges laid – sought to use evidence to explain why accused joined agreement
Held: although evidence not tendered as tendency or co-incidence evidence trial judge failed to properly consider risk that jury would improperly use evidence as tendency evidence – evidence probably not admissible because prejudice outweighed probative value
 
Baghdadi
[2011] NSW CCA 234
Evidence Act s.98 – two armed robberies of grocery stores four days apart – appellant pleaded guilty to carjacking of BMW four hours before first robbery – some evidence linking BMW to robberies – evidence admitted at trial as co-incidence evidence
Held: appeal allowed – trial judge failed to satisfy the statutory pre-conditions – following four answers must be considered:
[108] …

(1) Are the carjacking and the Berala robbery events substantially and relevantly similar? (2) Are the circumstances in which the carjacking and the Berala robbery occurred substantially similar? (3) Will evidence of the carjacking (either by itself or having regard to other evidence adduced or to be adduced by the Crown) have significant probative value concerning whether the Appellant committed the Berala robbery? (4) Will the probative value of the evidence concerning the carjacking substantially outweigh any prejudicial effect it may have on the Appellant, so far as the jury's consideration of whether he was guilty of the Berala robbery was concerned?

...110] In my view, the judge did not perform the statutory task. He recited the terms of s 98(2), but did not apply them. Instead he considered "similarities" between the carjacking and the first robbery, without differentiating between whether the events themselves were substantially and relevantly similar, and whether the circumstances in which they occurred were substantially similar. Both ss 98(2)(a) and 98(2)(b) must be satisfied before the exhaustive definition ( "if and only if" ) of "related events" in s 98(2) is satisfied.
 
Baghdadi (No.2)
[2012] NSWCCA 77
Evidence Act s.98 – matter brought back to reconsider judgment – failed to consider unsafe and unsatisfactory ground
Held: appeal allowed – CCA concluded evidence should not have been admitted as co-incidence evidence – some similarities between carjacking and robberies and some dissimilarities – finding that events not substantially and relevantly similar enough to show not related events under s.98(2) – also found not open to jury to convict – acquittal entered on each charge
 
MR
[2013] NSW CCA [236]
Evidence Act 1995 (NSW) s 98 – armed robbery – accused charged with four armed robberies – Crown sought to lead co-incidence evidence as to involvement of MR in each robbery and have all charges heard together – TJ rejected application and severed indictment
Held: s.5F appeal allowed – evidence admitted and order severing counts on indictment set aside – consideration of difference between old s.98 and amended wording – threshold test of striking similarities no longer required – applied Zhang and DSJ – trial judge must first identify suggested similarities in evidence capable of significant probative value then consider whether effect of similarities establish link to accused – in this case evidence capable of establishing same offenders involved in all offences (first step) and capable of establishing involvement of MR in offences (second step) – must consider combined effect of all evidence and suggested similarities.
 
Versi
[2013] NSWCCA 206
Evidence Act 1995 (NSW) s 98 – sexual offences against step-daughter included allegation offender asked V to rub cream on penis – evidence from different step-daughter from different family of earlier incident where offender asked her to hold penis while he fixed hernia – directions to jury
Held: appeal dismissed – despite earlier allegation disputed evidence admissible based upon similarity of account in absence of any suggestion of concoction (Adams J at [133]; Basten JA at [15]) – erroneous direction that jury must be satisfied of earlier incident beyond reasonable doubt favourable to accused – despite errors in directions no substantial miscarriage (Adams J at [134-142]; Basten JA at [17])
 

Saoud 
[2014] NSWCCA 136  
Evidence Act 1995 (NSW) s. 97, 98 – sexual assaults - different interpretations alleged as to meaning of "significant probative value" - Velkoski [2014] VSCA 121 held "significant probative value" requires a higher degree of similarities to that required by this Court - whether difference exists - whether difference needs to be addressed and reconciled - admissibility -  similar circumstances alleged in separate and independent complaints against applicant - whether evidence had "significant probative value" - whether trial judge failed to identify issues at trial to determine probative value - degree of specificity of conduct in determining probative value of tendency or coincidence evidence - relevance of similarities in determining probative value of tendency evidence - whether probative value of evidence outweighed any prejudicial effect

Applicant charged with seven counts of indecent assault and sexual assault on the basis of two separate complaints - one relating to conduct occurring on 8 August 2009, the other to conduct on 22 May 2011. The circumstances of each complaint were similar: former employees of the applicant, invited to his business premises after hours to help with work, where he persisted in sexual advances despite attempts to resist. The applicant denied the charges relating to the first complaint; he conceded the conduct constituting the indecent assaults with the second complainant, but said it was consensual. At trial, evidence of one complainant was held to have significant probative value with respect to charges concerning the other and was admitted as tendency and coincidence evidence. The issue for determination was whether the trial judge was correct in finding the evidence had "significant probative value" and whether the probative value of that evidence substantially outweighed its prejudicial effect.

 

Held: Appeal dismissed.

1. The evidence had significant probative value because it went to whether the applicant would have persisted in attempting sexual intercourse despite the absence of consent. This remained an issue even though the applicant accepted that the activities underlying the indecent assaults in the second complaint occurred: [26], [49]-[53]

2. The probative value of the evidence outweighed any prejudicial effect: it was confined to establishing the charges laid, did not involve deviant behaviour and there were no issues of collaboration or contamination of the complaints. There was nothing to suggest any prejudice that did arise could not be addressed by adequate directions: [54]-[59]: Sokolowskyj [2014] NSWCCA 55 referred to.

3. Consideration of the Victorian Court of Appeal decision in Velkoski [2014] VSCA 121 regarding admissibility of tendency evidence on the basis of similarities and its consistency with statements of this Court in Fletcher (2005) 156 A Crim R 308; Ford (2009) 201 A Crim R 451; PWD (2010) 205 A Crim R 75; BP [2010] NSWCCA 303 at [35]-[48]. PWD at [79] does not "remove any requirement of similarity or commonality of features", as suggested in Velkoski. Where relevant and appropriate, a proper consideration of similarities will constitute an essential part of the application of s 97, as this Court has accepted on numerous occasions: at [48].

 

JG 
[2014] NSWCCA 138 
Evidence Act 1995 s 97, 98 – old sexual offences –Crown led tendency evidence – trial judge at first instance allowed evidence – trail aborted and second trial judge considered matter under s.130A Criminal Procedure Act – invited to consider testimony of witnesses given at earlier aborted trial

Held: at [104]-[106] per Simpson J - no error in declining to overrule earlier decision – credibility of witnesses as demonstrated by evidence irrelevant to question of probative value – capacity of evidence only question - no other element of evidence relevant to decision

 

El-Haddad 
[2015] NSWCCA 10; 88 NSWLR 93 
Evidence Act 1995 (NSW) ss 95, 97, 98, 101 – drug importation - five charges - whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 -  relevance of dissimilarities - whether open to trial judge to deal with coincidence rule and tendency rule together - Evidence relevant to each of the counts admitted without restriction at trial although an objection to broadly worded notices pursuant to ss 97 and 98 was flagged at the outset -  before close of Crown case, a further notice pursuant to ss 97 and 98 sent by the prosecutor identifying with precision the evidence that had been adduced in the course of the trial - judge held the original notices insufficient, but second notice sufficiently specific to satisfy ss 97, 98.

Held: Appeal dismissed.

1. Sections 97 and 98 do not preclude the admissibility of evidence per se, but rather are rules precluding the admissibility of evidence to prove a "particular matter", which must be read with ss 94 and 95 of the Act: at [34]-[36], [38].

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668, followed

DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758, considered

2. Section 95 constrains the use which may be made of evidence even if it is relevant and admitted and available to be used for another purpose, including where the evidence is not 'tendency evidence' or 'coincidence evidence'. When a trial is by judge and jury, that will ordinarily require a direction to be given: at [38]-[42].

R v AH (1997) 42 NSWLR 702; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504, considered and applied

3. In the present case, s 95 was applicable, such that evidence relevant to Counts 1, 2, 3 and 5 which was not relevant to Count 4 except insofar as it might be admissible as tendency or coincidence evidence, could not be used for either purpose unless ss 97, 98 and 101 were satisfied. Conversely, evidence relevant to Count 4 which was not relevant to the other charges except insofar as it involved tendency or coincidence reasoning could not be used for that purpose unless ss 97, 98 and 101 were satisfied: at [43].

4. Consideration of the relationship between the "tendency rule" and the "coincidence rule", the requirement to give notices, and the content of such notices: at [46]-[56].

KJR v R [2007] NSWCCA 165; 173 A Crim R 226; Saoud v R [2014] NSWCCA 136; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504; Bryant v R [2011] NSWCCA 26; 205 A Crim R 531, referred to and applied

5. Tendency evidence may possess significant probative value depending on the degree of generality or specificity with which the "tendency" is stated. That is, the specificity of the tendency directly informs the strength of the inferential mode of reasoning: at [70]-[72].

Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; R v Ford [2009] NSWCCA 306, referred to

Sokolowskyj v R [2014] NSWCCA 55, considered

6. Evidence which supports tendency or coincidence reasoning turns on whether there are relevant similarities or differences; relevant dissimilarities may dilute the probative value of the evidence: at [74]-[75].

Sokolowskyj v R [2014] NSWCCA 55, applied

 

R v A2; R v KM; R v Vaziri (No. 18) [2015] NSWSC 1625[2015] NSWSC 1625 
Evidence Act 1995 (NSW) ss 97, 98, 101  – female genital mutilation – two victims – Crown seeks to have the evidence cross-admissible as between the counts for each victim

Held: Evidence admissible.

The principles to be applied on this application are found in decisions including DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349; R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487; R v MR [2013] NSWCCA 236 and El-Haddad v R.

There is an overlap between the tendency and coincidence rules, and that there is an awkwardness in separating tendency and coincidence evidence where there is no dispute as to the identity of the alleged offender, but what is in issue is whether the offences occurred: El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at 107 [46].

 

Dent  
[2016] NSWSC 99 RA Hulme J 
Murder – charged with violent and fatal robbery of male in park – Crown sought to lead evidence of killing of two males in robbery in park 37y earlier as tendency and co-incidence evidence – some similarities of no significance – fact that all victims aged in 50s happenstance – degree of violence and motive of robbery not uncommon – no significant probative value

 

R v A2; R v KM; R v Vaziri (No. 18) [2015] NSWSC 1625 
[2015] NSWSC 1625 
Evidence Act 1995 (NSW) ss 97, 98, 101 – female genital mutilation – two victims – Crown seeks to have the evidence cross-admissible as between the counts for each victim

Held: Evidence admissible.

The principles to be applied on this application are found in decisions including DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349; R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487; R v MR [2013] NSWCCA 236 and El-Haddad v R.

There is an overlap between the tendency and coincidence rules, and that there is an awkwardness in separating tendency and coincidence evidence where there is no dispute as to the identity of the alleged offender, but what is in issue is whether the offences occurred: El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at 107 [46].

 

Matonwal and Amood (decision restricted) 
[2016] NSWCCA 174 
Armed robberies – multiple counts – offenders arrested during one armed robbery – pleaded guilty to this offence – charged with further 5 armed robberies - s.5F appeal by Crown against refusal of trial judge to allow as co-incidence and tendency evidence of each armed robbery – Crown relied upon aspects of each robbery displayed in CCTV including clothing, use of weapons, cars and general size of offenders – trial judge refused to admit evidence as co-incidence on basis features were common to robberies in general

Held: trial judge erred by considering each alleged similarity individually and failing to consider in context of other Crown evidence at [75] – assessment by CCA concludes evidence of all but two robberies admissible as co-incidence evidence – not tendency evidence –fails to show persons committing offences were respondents

Steps in considering co-incidence evidence – at [70]-[71] - consider if relevant to fact finding – includes considering whether real possibility inconsistent with guilt and whether that substantially alters view of evidence: DSJ v R [2012] NSWCCA 9; 84 NSWLR 758; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 – at [77] significant probative value relates to importance of evidence to fact finding issue: IMM v The Queen [2016] HCA 14; 90 ALJR 529 applied

 

 


 

 

Section 99: Requirements for notices

Willoughby
NSWSC [751] Greg James J 31.7.2000 Evidence Act 1995 (NSW) s.99 - murder – admissibility of tendency evidence Held: evidence admissible – failure of Crown to give reasonable notice means jury discharged.

A.N.
[2000] 117 A Crim R 176; NSW CCA [372] 9.11.2000
Evidence Act 1995 (NSW) s.99 reg 6 - sexual offences - Crown led evidence of uncharged sexual acts - notice failed to comply with regulations - failed to identify evidence to be called and give other details.
Held: failure of accused to complain about notice at trial does not constitute waiver unless accused has been appraised of rights and advised to waiver those rights by legal representative [s.190(2)(a)] and Court is satisfied accused understands consequences of waiver [s.190(2)(b)]
Held: tendency evidence not properly admitted as notice given by Crown to defence was defective and did not comply with reg 6 for first or second trial - notice did not identify evidence which would be called by Crown, nor provide information required to be provided - no application by Crown to dispense with notice under s.100.

AB
NSW CCA [496] 15.11.2001
Evidence Act 1995 (NSW) s.99 - sexual offences - whether notice complied with requirements
Held: sufficient to comply with regulations if notice contains description of evidence or refers to readily identifiable document that contains description of nature and substance of evidence intended to be tendered

Andrews
NSW CCA [7] 6.2.2003
Evidence Act 1995 (NSW) s.99 - murder - appellant killed wife out of jealousy - evidence of previous incidents when appellant showed aggression motivated by jealousy allowed at trial
Held: inclusion of substance of evidence in Crown brief when served sufficient to comply with notice requirements

Harker
NSW CCA [427] 2.12.2004
Evidence Act 1995 (NSW) s.99 – sexual assault – appeal against refusal of judge to dispense with notice requirements – attempt to tender evidence from male witness as to sexual abuse by accused against male witness at same time as current allegations
Held: allowing appeal - judge required to consider s.192(2) – two most important considerations are probative value of evidence and prejudice caused by failure to give proper notice – fact that witness recalling old events irrelevant – no basis here for finding prejudice
 

Zhang 
(2005) 158 A Crim R 504, NSWCCA 
Evidence Act 1995 (NSW), s.99 – drug offences – notice for co-incidence evidence

Held:

[131] A properly drafted s98 Notice involves the identification of four matters. These are:

  • the two or more related "events" the subject of the proposed evidence;
  • the person whose conduct or state of mind is the subject of the proposed evidence;
  • whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that "act" is
  • whether the evidence is to be tendered to establish that that person had a particular state of mind, and, if so, what that " state of mind" is.

Bryant 
[2011] NSWCCA 26 
Evidence Act 1995 (NSW) s.99 – no notice given at trial – defence counsel made no objection

Held: on appeal court commented on importance of always having notice that details what evidence is to be tendered as tendency or co-incidence evidence at [51]

 

 

Time for Notice

Under  
Supreme Court Rules 1970 Part 75 Rule 3(6) 
District Court Rules 1973 Part 53 Rule 10C 
Rule 31.5 of the Uniform Civil Procedure Rules 2005 applies 
Uniform Civil Procedure Rules

31.5 Notice under s 67 or s 99 of the Evidence Act 1995

Unless the court orders otherwise, notice for the purposes of section 67 or 99 of the Evidence Act 1995 must be given:

(a) in any case where the court by notice to the parties fixes a date for determining the date for hearing, not later than 21 days before the date fixed by that notice, and

(b) in any other case where the place of hearing is a place other than Sydney, not later than 21 days before the first call-over held in respect of the sittings at that place, and

(c) in any other case, not later than 21 days before the date on which the court determines the date for hearing.


 

Section 100: Dispensing with requirement for notice


Harker
NSW CCA [427] 2.12.2004
Evidence Act 1995 (NSW) s.100, 101 – s.5F(3A) Crown appeal – respondent charged with multiple sexual assault offences against child – refusal of TJ to admit evidence of allegations of sexual abuse of second male as tendency evidence – found prejudicial effect outweighed probative value – Crown appeal against decision remitted to TJ to consider failure to comply with notice requirements – TJ refused to dispense with notice requirements
Held: allowing appeal – two issues to be determined under s.100(1) – probative value of evidence and prejudice to opposing party caused by failure to give notice – failure to properly consider prejudice to respondent – took into account irrelevant considerations – fact that witness giving evidence of events occurring 8-9 year ago irrelevant – erroneously applied test under s.137
Earlier decision rejecting tendency evidence also cannot stand - no evidence of concoction – sufficient similarity - failed to consider accumulation of evidence instead of individual allegations – fact that witness alleging uncharged criminal conduct irrelevant – failed to give adequate reasons
 
 

Peterson (No.3) 
[2014] NSWSC 1063 Campbell J 
Evidence Act 1995 (NSW) s.100 – murder – late service of notice – at [16] considered factors under s.192(2)

 

Anderson 
[2015] NSWSC 1474 McCallum J 
Evidence Act 1995 (NSW) s.100 – murder – late service of notice – unfair to defence – much to prepare in two weeks – refused application

 

 

 

Section 101: Further restrictions on tendency/coincidence evidence

Lockyer  
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.101 - murder of young child - accused sought to show reasonable possibility mother killed baby - sought to show reasonable possibility mother responsible for previous injuries to child.
Held: ss.101 and 137 inapplicable to evidence when led by accused.


Hancock
NSW CCA 21.11.1996
Evidence Act 1995 (NSW) s.101 - AOABH - cross-examined complainant about previous incident where complainant attacked man with hammer - relevant to self defence - Crown granted leave to cross-examine appellant on criminal record under s.104 - evidence dealt with solely as going to credit
Held: evidence of appellant’s criminal record clearly tendency evidence and therefore had to satisfy conditions of s.97 and 101 - substantial prejudice to appellant - evidence should have been excluded

Huang-Tung, Tam & Kuan
NSWSC (Barr J) 25.2.1997
Evidence Act 1995 (NSW) s.101 - drug importation - drugs sealed in plastic bags secreted in base of painting - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - Asian males receiving crates with Chinese glass-framed paintings
Held evidence admitted - significant probative value substantially outweighing any prejudicial effect

Lock
(1997) 91 A Crim R 356; (NSWSC Hunt CJ at CL)
Evidence Act 1995 (NSW) s.101 - stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbing of victim by accused.
Held: assessment of probative value will require assessment of circumstances surrounding fact in issue and circumstances surrounding tendency evidence - following Pfennig only if there is no rational or reasonable view of the evidence consistent with innocence will probative value outweigh prejudicial effect - test applies to both tendency and co-incidence evidence in this case not enough detail as to circumstances surrounding prior incidents to be satisfied of probative value.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.101 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.101 - importation of drugs - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting the presence of the two co-accused in Sydney on previous four occasions
Held: evidence admitted - significant probative value substantially outweighing any prejudicial effect

Fowler
NSWSC (Dowd J) 15.5.1997
Evidence Act 1995 (NSW) s.101 - application by defence to cross-examine Crown witness as to violent disposition of witness, criminal history of witness after murder and tendency of witness to influence jurors and other witnesses.
Held: leave granted to cross-examine as to tendency.

Gabriel v The Queen
Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.101 - street fight resulted in stabbing of V - evidence given by witness that accused had told him he intended to do a robbery that day - Crown referred to the proposed evidence in opening statement
Held: evidence breached s.97 and 101 - no probative value - evidence should not have been admitted - could not be corrected by a direction to the jury.

AH
(1997) 42 NSWLR 702; NSW CCA 27.11.1997
Evidence Act 1995 (NSW) s.101 - sexual offences on niece - evidence of sexual relationship other than that charged in indictment allowed
Held: evidence must have significant probative value that substantially outweighs danger of prejudice - there must be no reasonable view consistent with innocence (Pfenning 182 CLR 461 at 483-4, 485)

Greenham
NSW CCA [8] 8.3.1999
Evidence Act 1995 (NSW) s.101 - aggravated indecent assault of 13y complainant - complainant gave evidence of sexual impropriety other than that charged.
Held: evidence may be admissible to place acts charged in context and demonstrate guilty passion by accused for complainant - if led to demonstrate guilty passion, it is tendency evidence which must meet tests in s97(1) and s.101(2) - must also consider s.409B(3) Crimes Act and s.136 and 137.

Leask
NSW CCA [33] 12.3.1999
Evidence Act 1995 (NSW) s.101(2)
Held: comment by Hulme J that Pfennig test not appropriate for s.101 - should look at text only.
Colby
NSW CCA [261] 26.8.1999
Evidence Act 1995 - ss.101 - aggravated sexual assault - victim alleged appellant committed frequent and unusual sexual acts - Crown relied on evidence from appellant’s three former wives that appellant engaged in frequent and unusual sexual acts as tendency or coincidence evidence.
Held: Hoch should be applied where Crown relies on evidence to establish tendency or rebut coincidence - if reasonable possibility of concoction evidence must be rejected because risk deprives evidence of significant probative value, regardless of substantial and relevant similarity - no real chance of concoction - evidence properly admitted.

Le
NSW CCA [49] 7.3.2000
Evidence Act 1995 s.101 - sexual and physical assaults against de facto and her two children - evidence led by crown of appellant’s possession of sex aids - complainants gave evidence appellant inserted or forced then to insert inanimate objects in their vaginas.
Dissent (per Hulme J) evidence should not have been admitted under current Pfennig test that evidence only admissible if there is no reasonable view of evidence consistent with innocence - test inappropriate - s.101(2) requires judgment and weighing exercise. (Hidden J agreed test needs to be reconsidered).

Willoughby
NSWSC [751] Greg James J 31.7.2000
Evidence Act 1995 (NSW) s.97, 99, 101 - murder - Crown led evidence showing accused’s mobile phone used at time when assailant seen using mobile phone - sought to lead further evidence that accused used phone to carry on marijuana trade to show exclusive use of phone.
Held: evidence admissible - highly relevant to case where issue is identification of assailant - evidence of marijuana dealing not so prejudicial - not violent and can be dealt with by direction - Crown’s failure to give reasonable notice means jury discharged.

OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.10.2000
Evidence Act 1995 (NSW) s.101(2) - sexual offences on nephew over 5 years - evidence led from three other boys that appellant sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: dismissing appeal - exclusion of evidence no longer governed only by test for concoction in Hoch - common law only applicable where consistent with Evidence Act provisions - followed Colby - need to consider possibility of concoction under s.101(2), s.135 and s.137 discretions - judge to undertake fact-finding exercise - must establish actual possibility not just opportunity or theoretical possibility of concoction - if Crown fails to exclude reasonable possibility of concoction wording of s.101 requires exclusion of evidence - Judge made no error in allowing evidence in this case.

F
(2002) 129 A Crim R 126; NSW CCA [125] 9.4.2002
Evidence Act 1995 - s.97, s.98, s.101 - sexual offences against 4 school students by gym teacher - Accused appeal against decision of judge to join three complainants - Crown appeal against decision to order separate trial in relation to one complainant
Held: central issue was whether evidence of each complainant admissible as tendency or coincidence evidence in relation to other complainants - principles and tests considered - appeals dismissed.

Joiner
NSW CCA [354] 28.8.2002
Evidence Act 1995 - 101 - murder - charged with assaulting his wife during argument - Crown led evidence from previous partners of violence
Held: evidence of significant probative value - evidence of inability to control anger and violent reaction to women in relationship powerful evidence to rebut claim no intent to harm - on issue of whether probative value outweighed prejudice followed WRC NSW CCA [210] 7.6.2002 which applied Pfennig - test should be whether there is a rational view of the evidence consistent with innocence - rational equals reasonable - propensity evidence must be such that, when added to all other evidence, would eliminate any reasonable doubt - evidence allowed

Eyles
NSW CCA [510] 20.12.2002
Evidence Act 1995 - 101 - sexual offences on young girls - Crown led evidence from 3 witnesses that appellant told them about picking up young bar girls in Philippines
Held: appeal allowed - evidence wrongly included - Judge imposed wrong test - considered s.135 and 137 not 101 - probative value low to non existent - prejudicial character very high - branded appellant as person of low moral character

Andrews
NSW CCA [7] 6.2.2003
Evidence Act 1995 (NSW) s.97, 101 - murder - appellant killed wife out of jealousy - evidence of previous incidents when appellant showed aggression motivated by jealousy allowed at trial
Held: appeal dismissed based on overwhelming evidence against appellant - Court referred to the unsettled question of whether provisions in 97 and 101 that tendency evidence must have “significant probative value … substantially outweighing any prejudicial effect on the defendant” are to be interpreted according to their natural meaning or in accordance with Pfennig (1995) 182 CLR 461

Ellis
(2003) 58 NSWLR 700; 144 A Crim R 1; NSW CCA [319] 5.11.2003
Evidence Act 1995 (NSW) s.97 – break enter and steal offences – judge allowed joint trial of 11 counts on basis evidence of each offence would be admissible against other counts – unusual and consistent modus operandi used – 5 judge bench convened to settle conflict over interpretation of s.101 test – whether common law test of Pfennig (whether no rational view consistent with innocence of accused) applies to statutory formula that probative value of evidence must substantially outweigh prejudicial effect
Held: appeal dismissed - common law test (no rational explanation consistent with innocence) replaced by statutory formula (balance probative value against prejudicial effect) – Pfennig does not apply – Trial judge did not err in applying statutory test not common law test

Mason
(2003) 140 A Crim R 274; NSW CCA [331] 3.12.2003
Evidence Act 1995 - s.98, 101 – armed robbery – evidence of other robberies and theft offences committed by appellant tendered as co-incidence evidence
Held: evidence correctly admitted – circumstances of offence substantially and relevantly similar – probative value of evidence extremely high and substantially outweighed any prejudicial effect – Ellis followed – common law test under Pfennig no longer applies – statutory balancing test of weighing probative value against prejudicial effect

Milton
NSW CCA [195] 18.6.2004
Evidence Act 1995 (NSW) s.101 – multiple sexual offences against 2 teenage boys – unrelated offences – no issue of concoction – whether evidence of each complainant admissible as tendency evidence in support of other complainant – whether there should have been separate trials
Held: appeal dismissed – admissibility of tendency evidence is determined by the tests under Evidence Act: whether evidence has significant probative value (s.97) and whether probative value outweighs prejudicial effect (s.101) – comparison of similarities and dissimilarities of complainants’ evidence relevant but not determinative of question – in this case combined evidence had considerable probative force in rebutting appellant’s suggestion that his association with each complainant was innocent – prejudice of joint trial alleviated by direction to jury to consider each complainant’s evidence separately – consideration of test a matter of individual judgment for each judge – no error in decision established here

Barton
NSW CCA [229] 8.7.2004
Evidence Act 1995 (NSW) s.97, 101 – Sexual offences against 7 young boys – joint trial held involving all complainants – evidence of each complainant relied upon as tendency evidence in support of other complainants – allegations of two complainants more serious than other complainants
Held: allowing appeal – Applied Ellis – “the precautions concerning what was previously termed propensity and similar fact evidence do not cease to have validity. The aims of common law and statute are identical in the sense that they are directed towards safeguards against possible wrongful conviction.” – TJ erroneously considered evidence from all complainants together and failed to consider relevance and effect of fact that some allegations involved less serious conduct than others – counts involving more serous offences should have been separated

Ellis
[2004] HCA 488, Transcript 1.12.2004
Evidence Act 1995 - s.101 – multiple counts of break, enter and steal – counts heard together in joint trial – before trial commenced issue arose as to admissibility of evidence of each offence as tendency or coincidence evidence in relation to all other offences on indictment – TJ concluded evidence was admissible in respect of eleven of thirteen counts - failed to refer to test in Pfennig v The Queen (1995) 182 CLR 461 – appellant appealed against convictions, submitting wrong test for admission of tendency and coincidence evidence applied – 5 judge bench of CCA dismissed appeal concluding test for admissibility of evidence to be determined by words of statute not common law test
Held: Special leave rescinded - court concluded insufficient prospects of success and “…we agree with the decision of Justice Spigelman on the construction of the Evidence Act.” – general tenor of transcript suggests High Court accepts statutory interpretation of test

Harker
NSW CCA [427] 2.12.2004
Evidence Act 1995 (NSW) s.100, 101 – s.5F(3A) Crown appeal – respondent charged with multiple sexual assault offences against child – refusal of TJ to admit evidence of allegations of sexual abuse of second male as tendency evidence – found prejudicial effect outweighed probative value – Crown appeal against decision remitted to TJ to consider failure to comply with notice requirements – TJ refused to dispense with notice requirements
Held: allowing appeal – Two issues to be determined under s.100(1) – probative value of evidence and prejudice to opposing party caused by failure to give notice – failure to properly consider prejudice to respondent – took into account irrelevant considerations – fact that witness giving evidence of events occurring 8-9 year ago irrelevant – erroneously applied test under s.137
Earlier decision rejecting tendency evidence also cannot stand - no evidence of concoction – sufficient similarity - failed to consider accumulation of evidence instead of individual allegations – fact that witness alleging uncharged criminal conduct irrelevant – failed to give adequate reasons
 
Watkins
NSW CCA [164] 1.6.2005
Evidence Act 1995 (NSW), ss 97, 98, s.101(1) – defrauded body corporate as officer – deposited cheques totaling over $2M into own account signed by company director – Crown tendered evidence of 1984 larceny as a clerk convictions
Held: appeal allowed and retrial ordered – under s.97 failed to consider time gap, guilty plea and reparations made on earlier convictions – required substantial degree of relevance to issue at trial – under s.98 failed to consider points of dissimilarity – time gap and points of dissimilarity significant effect on probative value - prejudicial effect outweighed probative value under s.101(2)
 
Fletcher
NSW CCA [338] 23.9.2005
Evidence Act 1995 (NSW), ss 97, 98, 101 – Catholic priest sexually abused 13-14 y o altar boy from the church– tendency and coincidence evidence from another altar boy/alleged victim – significant differences between conduct alleged to have occurred with two boys – 4 years elapsed between events but significant similarities – difficulties constructing s101(2)
Held: appeal dismissed by majority – consideration of principles of admission of co-incidence and tendency evidence – mysteries of s.101 drafting (Nassif [2004] NSWCCA 443 at [46] – [47]) – open for TJ to find probative value not outweighed by prejudicial effect under s.101
 
R.N.
NSW CCA [413] 2.12.2005
Evidence Act 1995 (NSW), s.101(2) – s.5F appeal against decision of judge to exclude co-incidence evidence – whether appropriate balancing exercise carried out
Held: appeal allowed – followed Harker at [53] – judge must give proper consideration to whether probative value of evidence outweighed by prejudice and make clear basis for decision
[13] I accept that it would be quite wrong to suggest that Judge Coolahan should have written out in his Honour’s judgment a checklist of the steps which s 101 required to be followed and then, so to speak, have ticked off each one, step by step, in a fashion more apt to McHugh J’s “mathematical calculation”, than to a value judgment. It must be, however, that any s 101 ruling must make apparent that the Judge has, in fact, looked in a precise way at what the section actually says and requires; and has then considered in a precise way, which has been given adequately transparent expression, how the Judge has assessed the relevant evidence given on the voir dire, and how he has then balanced out the competing statutory considerations. It is fair to acknowledge that his Honour received very limited assistance from both counsel who appeared before him and that such assistance did not at all help his Honour by focusing upon s 101(2) in the way that I have suggested
 
Ngatikaura
[2006] NSWCCA 161, 161 A Crim R 329
Evidence Act s.97, 101 – prior criminal conduct – whether tendency evidence – prosecution sought s5F(3A) declaration that evidence of prior drug supply by accused should have been admissible to show tendency of accused to supply drugs - whether general exclusionary provisions (ss.135-137) operate where tendency provisions apply.
Held: evidence of prior offences was tendency evidence and its admissibility was governed by ss.97(1) and 101(2): Fletcher [2005] NSWCCA 338 (discussed) - there is no room beyond operation of tendency provisions for application of either s.135 or s.137 to tendency evidence - as trial judge did not consider whether evidence should be admitted under s.97, nor whether s.101(2) should operate to exclude evidence, matter remitted to District Court.
 
Gardiner
[2006] NSWCCA 190, 162 A Crim R 233
Evidence Act s.97, 101 – possess firearms – firearms found in storage unit leased by appellant – claimed rented on behalf of bikie club where many others had access – on same day firearms found in club headquarters – appellant club president – no charge over firearms found at headquarters but lead as tendency evidence – police relied upon evidence of informer – appellant claimed set up
Held: Tendency evidence wrongly admitted – failure to consider s.101(2) unfair prejudice – evidence unfairly raised suggestion appellant involved in uncharged offences, or associated with people involved in firearms offences – also failed to identify tendency – evidence could not go to proving appellant’s ownership of guns in storage unit
Held: per Simpson J – summary of approach to considering admission of tendency evidence – evidence not relevant to any fact in issue in this case
 
Sood
[2006] NSWSC 695, Simpson J, 10.7.2006
Evidence Act s.97, 101 – manslaughter; unlawfully administer drug to procure miscarriage – doctor alleged to have given patient oral and vaginal abortifacient – Crown seeking to lead evidence of giving similar drugs to another patient and taking cash payment without issuing receipt
Held: evidence as to giving tablets relevant to fact in issue, probative and not outweighed by prejudice – taking cash without receipt not probative and prejudicial
 
Bingul
[2009] NSW CCA 239, 18.9.2009
Evidence Act ss.97, 101 – drug offences – tendency evidence – Crown led evidence of taped conversations which occurred on dates other than the dates of charged offences - Defence counsel submitted a global objection to particular conversations in s 101 notice – Whether evidence should not have been admitted.
Held: Appeal dismissed.
a) The objection to the tendency evidence made by defence at trial only covered the particular identified conversations in the notice to which objection was raised and not all of the evidence: [31].
b) At trial defence counsel argued prejudice in the identified conversations on a “global” basis and the trial judge dealt with the objection in a way that reflected the manner in which the objection was argued: [35] -[36].
c) The “global approach” and the nature of the expressed prejudice meant that what was put on appeal as prejudice was never articulated before the trial judge so there was no error: [36].
d) ss 97 and 101 did not require the trial judge to examine each conversation in the evidence separately or to deal with the objections in a way differently to the overall global approach taken by counsel in argument: [37].
 
ES v R (No. 1)
[2010] NSW CCA 197, 22.3.2010
Evidence Act ss.97, 101 – Child sexual assault - Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.
Held: Evidence wrongly admitted. Conviction quashed. New trial ordered.
K’s evidence about her observation of events objected to on the basis that its prejudicial effect outweighed its probative value. Objection occurred where no notice given under s 97, no direction under s 100 (dispensation with notice) had been sought or given, and Crown had stated it would not be leading tendency evidence.
If evidence of uncharged acts is to be used in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.
In this case the only basis on which the evidence in question could have been admitted was as context evidence. No reference made to s 97 or s 101 Evidence Act, and these sections were not referred to by the trial judge. TJ addressed the question in terms of whether the evidence was relevant and if so whether its probative value was outweighed by its prejudicial effect. The trial judge held the evidence was relevant in that it corroborated the complainant, and that it was not unfairly prejudicial.
The modest probative value as context evidence was outweighed by danger of unfair prejudice from its probative force as motive/tendency evidence (which must be considered as unfairly prejudicial).
 
FB
[2011] NSW CCA 217
Evidence Act s.97, 101 –sexual assault – headmaster convicted of sexually assaulting 14y student staying with family – pleaded guilty to sexual intercourse with different student that occurred fourteen months after trial offences – whether evidence of subsequent offences should not have been admitted as tendency evidence – whether evidence of concoction
Held: Appeal dismissed – to establish concoction must show real chance of concoction not speculative chance (at [35])
 
MR
[2013] NSW CCA [236]
Evidence Act 1995 (NSW) s 98 – armed robbery – accused charged with four armed robberies – Crown sought to lead co-incidence evidence as to involvement of MR in each robbery and have all charges heard together – TJ rejected application and severed indictment
Held: s.5F appeal allowed – evidence admitted and order severing counts on indictment set aside – trial judge erred in finding prejudice was that evidence established involvement of accused in offences
 
Sokolowskyj
[2014] NSWCCA 55
Evidence Act 1995 s 101 – sexual offences – offender convicted of indecently assault 8y girl in parents room while shopping – Crown permitted to tender evidence that offender had history of masturbating in public as tendency evidence – tendency to behave in inappropriate sexual manner in public
Held: evidence should not have been allowed – failure to conduct balancing test under s.101(2) – error to assume direction to jury would prevent prejudice – followed GAC (2007) 178 A Crim R 408 at [87]

 

MM 
[2014] NSWCCA 144 
Evidence Act 1995 s 97, 101(2) – sexual offences – s.5F appeal – respondent had pleaded guilty to old sexual offences committed on sister when she was 10-11y – charged with sexual offences against sister five years later – gap between earlier offences and later offences explained by both complainant having live in boyfriend and respondent having temporarily moved out of house with partner – trial judge rejected evidence of uncharged sexual activity, admissions made by respondent and plea to earlier sexual offences as tendency and context evidence – probative value outweighed by prejudice – prejudice could not be overcome by directions

Held: trial judge erred in assessment of prejudice – evidence critical to understanding five year gap between offences and response of complainant to sexual advances of respondent at later date – prejudice under s.101(2) same test as under s.137 – probative value not outweighed by prejudice – also did not properly consider the issue of context evidence

 

Sumpton (No.2) 
[2014] NSWSC 1440, Hamill J 
Evidence Act 1995 (NSW) s.97, 101 – murder of Asian female – Crown case alleged sexually motivated – accused claims sexual dysfunction – Crown seeking to rely upon three pieces of evidence – evidence of previous partner that accused watched Asian porn while using drugs – evidence of neighbour that accused told him he used an Asian prostitute while using speed and liked it rough – evidence of young female Asian friends on facebook

Held: issue of whether accused has sexual interest in Asian females of considerable interest – only evidence from partner and neighbour admitted - evidence of watching Asian porn of considerable significance – not diminished by fact that accused was in relationship with non-Asian partner and that it was only part of sexual behaviour of accused – no prejudice in use of adult pornography – remove reference to drugs – evidence of neighbour not diminished by fact that it was one occasion only – remove reference to drugs use and comment of liking it rough – possibility of bad character in use of prostitutes removed by directions – no significant probative value in facebook evidence – no real evidence of context of relationship – could cause prejudice by distracting jury – friendships with younger Asian females – directions would only highlight issue

 

Aravena 
[2015] NSWCCA 288 
Evidence Act 1995 (NSW) ss.97, 101 – sexual offences – recklessly inflicting actual bodily harm with intent to have sexual intercourse -  indecent assault and AOABH  charged in the alternative - Crown adduced tendency evidence pursuant to s 97 of a 2006 incident to  which the appellant pleaded guilty to a charge of indecent assault.

Held: Appeal dismissed. Not necessary, for evidence to be admissible as tendency evidence, that the conduct occur on a number of occasions so as to evince a particular pattern of behaviour or a modus operandi. Although a single incident some years before may provide a weaker foundation than evidence of multiple incidents, such considerations did not deprive the evidence of significance in the sense contemplated by s 97. [85]-[88]; R v Ford (2009) 201 A Crim R 451; FB v The Queen [2011] NSWCCA 217; Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356.

No error by trial judge to admit the evidence under s 101. As the critical issues for the determination of the jury were the nature of the assault upon the complainant by the appellant, and the question of his intention at the time, the probative value of the tendency evidence was very high. [96]

 

BC 
[2015] NSWCCA 327  
Evidence Act 1995 (NSW) s.97, s 101 – sexual assault - tendency evidence – offences committed when victims between ages 11 and 28 years old – whether charges should be tried separately - Alleged error in finding that the allegations in relation to the various complaints were similar - complainants are sisters – possibility of concoction – relevance of concoction in assessing probative value under s 101(2) – whether probative value of evidence outweighed by prejudicial effect.

Held: Appeal dismissed.  Steps in determining whether to admit evidence as tendency is, first, to determine whether relevant evidence under s 55, then whether it satisfies s 97(1) and, in particular, has "significant probative value", and finally whether it is excluded by s 101(2) (or s 137): DSJ [2012] NSWCCA 9; 259 FLR 262. No basis demonstrated for interfering with the trial judge's assessment as to existence of similarities between the conduct the subject of the allegations or the significant probative value of evidence in support.

Concoction s 101(2) - Discussion of BJS [2011] NSWCCA 239 at [24]; Jones [2014] NSWCCA 280; DJW [2015] NSWCCA 164. Not necessary to attempt to resolve the effect of these authorities No authority that this Court was referred to for the proposition that a trial judge is obliged to consider whether the mere existence of an opportunity for concoction is relevant to determining whether proposed tendency evidence satisfies s 97(1)(b) or should be excluded under s 101(2): at [117]-[120].

 

Hughes 
[2015] NSWCCA 330  
Evidence Act 1995 (NSW) ss.97, 101 – sexual assault - sexual offences against four victims under 16 - whether tendency evidence admissible - directions re contamination and concoction and use of tendency evidence.

Held: Appeal dismissed.  Not judge's function to make own findings as to likely weight, or its likely acceptance or rejection of evidence by jury. May be cases in which evidence of concoction or contamination gives rise to competing inferences, relevant to a determination of probative value of evidence by a judge. Given the evidence of prior complaints, this was not such a case. [94]-[95], [200]-[204]; BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532; Jones v R [2014] NSWCCA 280; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758l; R v XY [2013] NSWCCA 121; 84 NSWLR 363; McIntosh v R [2015] NSWCCA 184.

For tendency evidence to be admissible, it is not necessary to exhibit "underlying unity", "a modus operandi" or "pattern of conduct". It must have "significant probative value". The extent and nature of any similarity is nonetheless relevant to that question. [166]-[167], [188]; Saoud v R [2014] NSWCCA 136; 87 NSWLR 481; R v Ford [2009] NSWCCA 306; 201 A Crim R 451.

Tendency evidence need not show a tendency to commit acts that constitute the crime with which accused charged. Wide range of evidence relevant to determination of guilt. Question is whether conduct said to exhibit a tendency allows an inferential process of reasoning that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion the subject of the charge or charges. [160], [182]-[185]; Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233; Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206; FB v R; R v FB [2011] NSWCCA 217; Doyle v R; R v Doyle [2014] NSWCCA 4; DAO v R [2011] NSWCCA 63; 81 NSWLR 568; R v PWD [2010] NSWCCA 209; 205 A Crim R 75; BP v R; R v BP [2010] NSWCCA 303; R v Ford.

Section 101(2) involves an evaluative judgment by trial judge, not exercise of discretion, as to the prejudicial effect of evidence, taking into account ameliorating effect of any directions. The principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of such a judgment. [189], [192]; R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; R v Ford; DAO v R; R v Fletcher; Ceissman v R; R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329; Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528.

 

Adams 
[2015] NSWSC 1960, Button J 
Evidence Act 1995 (NSW) s.97, 101 – murder – old case – female victim disappeared in 1983 and body never found – last seen driving off in car with accused - Crown sought to lead evidence of four incidents involving accused and females around time of disappearance – all involved allegations of sexual offences – two resulted in convictions

Held: applied summary of El Hadad [2015] NSWCCA 10 at [65]-[72] – danger of unfair prejudice very high given nature of allegations – probative value of incidents, both individually and together, compelling – remains compelling despite no evidence of sexual violence against missing victim – probative value outweighs prejudice – 'far more specific than mere proclivity to engage in certain type of crime' at [153]

 

Curtis 
[2016] NSWSC 330 (McCallum J) 
Evidence Act 1995 (NSW) s. 101 – insider trading – Crown seeks to lead evidence of 45 other trades as coincidence evidence - where proposed coincidence evidence admissible for another purpose – whether improbability reasoning permissible to prove acts and states of mind specified in coincidence notice - conspiracy – where similarities in alleged overt acts relied upon to prove anterior agreement – assessment of prejudicial effect on accused.

Held: Evidence not admissible under s 101.  Evidence of the 45 trades cannot be used to prove the unlawful agreement alleged by the Crown by improbability reasoning. That is not to preclude the Crown from addressing on the basis that that evidence is part of the circumstantial case to support the existence of the unlawful agreement. The effect of this ruling will be to constrain the Crown from addressing the jury as to an additional basis for inferring the existence of the agreement described in the indictment founded upon improbability reasoning by reference to the 45 trades: at [33].

Use of the evidence as coincidence evidence could have prejudicial effect on the accused. In particular, it could confuse the jury in the important task of determining whether the Crown has established the unlawful agreement beyond reasonable doubt: at [32].

 

GM 
[2016] NSWCCA 78 (restricted) 
Section 5F - Respondent charged with sexual offences against four child complainants – Crown appeal against orders for separate trials and refusal to allow tendency evidence

Held: appeal allowed

Per Hoeben CJ at CL (Hall J agreeing)

Summary of cases where issue is relevance of concoction / contamination

[86] – most comprehensive statement as to the law under s.97 and 101 is Hughes [2015] NSWCCA 330 at [158] – [204].

[89] First consider DSJ [2012] NSWCCA 9 at [8]-[11]; [78]-[81]

[90] although a coincidence casse applied to tendency: JG [2014] NSWCCA 138 at [105]

[91] The issue of where in the process of reasoning the risk of concoction and contamination should be considered was dealt with directly in Jones [2014] NSWCCA 280 at [76]-[77], [85]-[90]

[92] Also considered in DJW v R [2015] NSWCCA 164 at [40]-[44] (restricted)

[93] Issue arose again in McIntosh [2015] NSWCCA 184 at [35]-[36]; [42]-[49]

[94] Most recent statement re concoction / contamination Hughes at [201]-[204]

[95]-[96] IMM [2016] HCA 14 applied Shamouil but did not consider application of s.101 although did reject Hoch rule under s.101 at [57]-[59]

Errors made by Trial Judge

[100] concoction relevant to determining significant probative value – error to consider separately

[101]-[104] – erred in implicitly implying Hoch test of 'no rational view' when considering possibility of concoction and contamination in approach to s.101

[105]-[107] – erred in making assessment of credibility and reliability of evidence

Appeal Court consideration of Issues

[109] Correct test under s.101 not without difficulty – DJW at [41] and McIntosh at [44], [47]

[111] Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value.  Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible.  In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.

[114]-[124] – to the extent to which the common law factors of relationship, opportunity and motive still relevant they did not result in inherent implausibility or powerful competing inference – opportunity to discuss the matter between complainants not sufficient especially where can be tested at trial – in this case material suggesting concoction or contamination matter for jury especially where involve findings of reliability or credibility – no real evidence of similarity between accounts by different complainants – matter can be dealt with by directions to jury as to possible contamination

[119]-[120] – a suggested scenario where contamination could give rise to inherent implausibility could be where multiple victims formed a group which regularly met to discuss issues

Button J 
Agreed with Hoeben CJ at CL but concluded in relation to role of asserted concoction or contamination in assessing probative value with regard to tendency or coincidence evidence and whether decision in IMM [2016] HCA 14 supersedes jurisprudence that has developed Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 in 2006 and XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 in 2013 that unless and until High Court speaks more determinatively and adversely with regard to jurisprudence developed by this Court content to regard it as remaining applicable to the task of trial judges.