12 / 7 / 2023

Tendency Evidence in NSW

Tendency evidence a category of evidence which aims to establish an individual has a tendency to act (or to fail to act) in a certain manner or to have a particular state of mind. Tendency evidence can also be used by one party to refute a tenancy that another party seeks to establish. The admissibility of tendency evidence is governed by the Evidence Act 1995 (NSW) and is similar in application to the related category of “coincidence” evidence.

Circumstances where is tendency evidence allowed

There are two conditions that must be satisfied in order for tendency evidence to be adduced at trial:

  1. Reasonable notice must be given to the respective party; and
  2. The evidence must have significant probative value.

Where a prosecutor is seeking to adduce tendence evidence about a defendant they must also establish that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

If a notice of an intention to adduce tendency evidence is served at least several months before the commencement of a trial that would usually be sufficient to represent “reasonable notice”.

Applications in court to adduce tendency evidence are often heard months before, or at the start of, a trial. Depending on the nature of the evidence, if tendency evidence is admitted it can in some cases significantly strengthen a party’s case. A common category of tendency evidence can relate to an alleged or asserted sexual interest on the part of a defendant.

What does significantly probative mean?

Two considerations must be made when determining whether the evidence has significant probative value.

  1. The degree the evidence supports a tendency; and
  2. The extent that the tendency assists to make up the elements of the facts of the offence.

As a general rule, it is accepted that the more similar the behaviour in the evidence and the event of the charge are, the more likely the tendency evidence will have probative value. However, the conduct is not required to be uniform to the relevant charge to satisfy the test. Merely, when the tendency evidence is paired with the other relevant material, it must make an element of the charge significantly more likely.

When considering whether evidence is significantly probative, the court may consider:

  1. The closeness of the evidence and the facts in issue
  2. The number of prior acts
  3. The general circumstances of the acts
  4. The availability of other evidence

It is a matter for the jury to accept or reject the credibility of tendency evidence. In determining the probative value of evidence, the Court cannot have regard to whether the evidence may be the result of collusion, concoction or contamination which is instead a matter for the jury to determine after hearing the evidence.

If it has been determined that the evidence has significantly probative value, and if a prosecutor is seeking to adduce tendency evidence against a defendant, the Court must consider whether the probative value is greater than the danger of unfair prejudice to the Defendant.

In order to mitigate the prejudicial effect of tendency evidence, if admitted, judges are often required to provide clear directions to a jury to ensure that the evidence is used for their intended purposes only.

Recent changes in the law – Child sexual offences

One recommendation arising from the Royal Commission into Institutional Responses into Child Sexual Abuse was to facilitate greater admissibility of tendency and coincidence evidence. In 2020, the Evidence Amendment (Tendency and Coincidence) Bill 2020 was introduced. The amendment introduced section 97A to the Evidence Act, broadening circumstances in which tendency evidence can be adduced.

In proceedings involving child sexual offences, it is assumed that evidence relating to tendency evidence about the defendant’s sexual interest in children (whether or not the defendant has acted on those interests) will have significant probative value.

Chloe Woodward