PART 3.6 – Tendency and Coincidence
Section 95: Use of Evidence for Other Purposes
Section 97: The tendency rule
 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
 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  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 -
tendency evidence that is used to establish conduct will almost inevitably have similarities with elements of offence (see also )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 Combination of similarities in circumstances of two offences establish significant probative value – - – 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 NSWCCA 144Sexual 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 -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 – , ,  JG NSWCCA 138Old 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 declinedAt - - 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 NSWCCA 175Murder – additional comments in relation to standard of proof for tendency evidencePer Simpson J at - – 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  – reserve consideration of whether direction unduly favourable to accused - Hidden J agreed with 'additional remarks' of Simpson JJones NSWCCA 280Sexual 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 – -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 – -Elomar NSWCCA 303- – court must determine for itself whether evidence tendency evidence – start by considering what is to be established by the evidence.What tendency evidence is: 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.  It is necessary to look to the terms of the legislative provisions. 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.  As Simpson J has said on previous occasions (for example, Gardiner at ), 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.  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.- - 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
 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.
 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: -
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: -.
'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 -
Generality of stated tendency or co-incidence will reduce probative value – increased specificity will make it more likely to have probative value -
Dissimilarities can reduce probative value where they are relevant: -
 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
 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
 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
 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 -
Concoction suggests deliberate fabrication – contamination may involve unconscious process of suggestion 
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.' , 
R v A2; R v KM; R v Vaziri (No. 18)  NSWSC 1625
 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)  NSWCCA 9; 215 A Crim R 349; R v Gale; R v Duckworth  NSWCCA 174; 217 A Crim R 487; R v MR  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  NSWCCA 10; 88 NSWLR 93 at 107 .
 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.
- 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
 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)
 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
 NSWSC 1742 RA Hulme J
Evidence Act 1995 (NSW) s.97 – murder – 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)  NSWSC 1737.
 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  NSWCCA 306; 201 A Crim R 451, R v Maybir (No 2)  NSWSC 1737, Sokolowskyj v R  NSWCCA 55
 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  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 -
When considering tendency evidence consider all the evidence , 
In this case trial judge did not find conduct and alleged offence similar – considered similarities when assessing probative value 
General prejudice can be dealt with by directions – need specific prejudice 
Relevance of concoction not settled -
 NSWCCA 164 (restricted)
23 sexual offences against 6 children
Trial Judge considered whether real risk of concoction or contamination
Considered Jones  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 -
Allegations do not have to necessarily exhibit close similarity 
s.101(2) – cannot rely upon general prejudice – must identify a specific prejudice that cannot be dealt with by directions -
 NSWCCA 330
Sexual offences against four victims under 16 – tendency evidence further admitted from further six witnesses
- 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: 
Significant probative value - question is whether jury could treat it as important in supporting inference of guilt 
Capacity of evidence not weight , 
Significant means important , 
Must consider alternative explanations inconsistent with guilt in assessing probative value -,  (not common law test of no rational explanation consistent with innocence – )
Test is significant probative value – do not require 'underlying unity', modus operandi' or pattern of conduct' ,  – rejected Victorian approach in Velkoski  VSCA 121 -
Similarities are relevant to the assessment of probative value ,  – greater the more likely court will find probative value  - different from requiring conduct in tendency evidence to bear similarities to alleged offence 
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 
Dissimilarities are not determinative – depends upon what the dissimilarities are 
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 -
Not the common law 'no rational explanation' test 
Prejudice is risk that jury will misuse evidence in unfair manner 
Can take into account effect of directions to jury 
 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
 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 , , 
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 
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  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  -, 
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
 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.
 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 
NETTLE AND GORDON JJ– no error in admitting tendency evidence - Evidence had significant probative value – no issues of reliability or credibility
 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:
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.
 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  - expressed concern that a single incident could constitute evidence of tendency but required to follow Aravena  NSWCCA 288 at -
At  – 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 - 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 - – this made evidence very weak – similar to the identification analogy adopted by the High Court in IMM  HCA 14 at  – 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  – in this case will put aside these weaknesses as going to reliability and therefore not relevant
Assessment of Significant Probative Value
At  – quoted Spigelman CJ in Shamouil at 
"Evidence has probative value… if it is capable of supporting a verdict of guilty"
At  – 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 - - 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 ; see also DSJ  NSWCCA 63 at  per Bathurst CJ
At - - 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  - 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
 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  – 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
 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
 – most comprehensive statement as to the law under s.97 and 101 is Hughes  NSWCCA 330 at  – .
 First consider DSJ  NSWCCA 9 at -; -
 although a coincidence casse applied to tendency: JG  NSWCCA 138 at 
 The issue of where in the process of reasoning the risk of concoction and contamination should be considered was dealt with directly in Jones  NSWCCA 280 at -, -
 Also considered in DJW v R  NSWCCA 164 at - (restricted)
 Issue arose again in McIntosh  NSWCCA 184 at -; -
 Most recent statement re concoction / contamination Hughes at -
- IMM  HCA 14 applied Shamouil but did not consider application of s.101 although did reject Hoch rule under s.101 at -
Errors made by Trial Judge
 concoction relevant to determining significant probative value – error to consider separately
- – erred in implicitly implying Hoch test of 'no rational view' when considering possibility of concoction and contamination in approach to s.101
- – erred in making assessment of credibility and reliability of evidence
Appeal Court consideration of Issues
 Correct test under s.101 not without difficulty – DJW at  and McIntosh at , 
 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.
- – 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
- – 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
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  HCA 14 supersedes jurisprudence that has developed Shamouil  NSWCCA 112; (2006) 66 NSWLR 228 in 2006 and XY  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.
 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.'
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 -: 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  HCA 14; 90 ALJR 529 at 538 -. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 . 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 .
s 97: evidence has "significant probative value" (referred to - Elomar v R  NSWCCA 303; 316 ALR 206; IMM v The Queen  HCA 14; 90 ALJR 529; Hughes v R  NSWCCA 330; BC v R  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 -: Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 . 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 .
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  HCA 37; 196 CLR 297 at 325 ; R v Clark  NSWCCA 494; 123 A Crim R 506 at 582-584 -. 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  NSWCCA 123; 231 A Crim R 537 at 549-550 .
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  NSWCCA 335; 237 A Crim R 238 at 280 .
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 -: 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  NSWCA 56 at .
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 .
s.135(c) has equal application to a Judge-alone trial.
Qaumi and Qaumi (no.2)
 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
 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
(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
 NSWCCA 136
Evidence Act 1995 (NSW) s. 97, 98 – sexual assaults - different interpretations alleged as to meaning of "significant probative value" - Velkoski  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: , -
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: -: Sokolowskyj  NSWCCA 55 referred to.
3. Consideration of the Victorian Court of Appeal decision in Velkoski  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  NSWCCA 303 at -. PWD at  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 .
 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 - 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
 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.
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 -, .
Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd  HCA 21; 87 ALJR 668, followed
DSJ v The Queen  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 -.
R v AH (1997) 42 NSWLR 702; R v Zhang  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 .
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 -.
KJR v R  NSWCCA 165; 173 A Crim R 226; Saoud v R  NSWCCA 136; R v Zhang  NSWCCA 437; 158 A Crim R 504; Bryant v R  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 -.
Townsend v Townsend  NSWCA 136; Ibrahim v Pham  NSWCA 215; R v Ford  NSWCCA 306, referred to
Sokolowskyj v R  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 -.
Sokolowskyj v R  NSWCCA 55, applied
R v A2; R v KM; R v Vaziri (No. 18)  NSWSC 1625 NSWSC 1625
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
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
Matonwal and Amood (decision restricted)
Held: trial judge erred by considering each alleged similarity individually and failing to consider in context of other Crown evidence at  – 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 - - 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  NSWCCA 9; 84 NSWLR 758; R v Zhang  NSWCCA 437; 158 A Crim R 504 – at  significant probative value relates to importance of evidence to fact finding issue: IMM v The Queen  HCA 14; 90 ALJR 529 applied
Section 99: Requirements for
noticesWilloughbyNSWSC  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
(2005) 158 A Crim R 504, NSWCCA
Evidence Act 1995 (NSW), s.99 – drug offences – notice for co-incidence evidence
 A properly drafted s98 Notice involves the identification of four matters. These are:
 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 
Time for Notice
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
 NSWSC 1063 Campbell J
Evidence Act 1995 (NSW) s.100 – murder – late service of notice – at  considered factors under s.192(2)
 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
 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
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
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. -; R v Ford (2009) 201 A Crim R 451; FB v The Queen  NSWCCA 217; Saoud v The Queen  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. 
 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  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  NSWCCA 239 at ; Jones  NSWCCA 280; DJW  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 -.
 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. -, -; BJS v R (No 2)  NSWCCA 123; 231 A Crim R 532; Jones v R  NSWCCA 280; R v Shamouil  NSWCCA 112; 66 NSWLR 228; DSJ v R; NS v R  NSWCCA 9; 84 NSWLR 758l; R v XY  NSWCCA 121; 84 NSWLR 363; McIntosh v R  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. -, ; Saoud v R  NSWCCA 136; 87 NSWLR 481; R v Ford  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. , -; Gardiner v R  NSWCCA 190; 162 A Crim R 233; Elomar v R; Hasan v R; Cheikho v R; Jamal v R  NSWCCA 303; 316 ALR 206; FB v R; R v FB  NSWCCA 217; Doyle v R; R v Doyle  NSWCCA 4; DAO v R  NSWCCA 63; 81 NSWLR 568; R v PWD  NSWCCA 209; 205 A Crim R 75; BP v R; R v BP  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  HCA 40; 55 CLR 499 apply to the appellate review of such a judgment. , ; R v Ellis  NSWCCA 319; 58 NSWLR 700; R v Ford; DAO v R; R v Fletcher; Ceissman v R; R v Ngatikaura  NSWCCA 161; 161 A Crim R 329; Sokolowskyj v R  NSWCCA 55; 239 A Crim R 528.
 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  NSWCCA 10 at - – 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 
 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 .
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 .