Tendency & Coincidence: Criminal and Civil Proceedings

Tendency and Coincidence Evidence CPD Lecture 31 October 2023 SJN Brown, Magistrate (1)

Some basics What is tendency and coincidence evidence?

(2)

(a)

Tendency evidence evidence that a person has an inclination towards a particular characteristic or a particular type of behaviour, or put another way, evidence that shows that a person frequently behaves in a particular way or has a certain characteristic. Put very simply, (if accepted by a crime.

(b)

Coincidence evidence evidence that shows that two or more events are similar in the way they occurred or similar in the circumstances in which they occurred, in a way which makes it improbable that the events occurred coincidentally and separately, and thereby evidence which tends to prove that the same person did the particular act. Again, put simply, it s evidence which demonstrates (if accepted by a jury) that as the defendant has committed a crime and crimes very like this crime

(c)

The common feature between tendency and coincidence evidence is that each type A and B has a "spooky resemblance" to A, then likely B also happened. But as in all cases involving indirect evidence, there may be other inferences open so similar considerations apply here as they do in cases involving circumstantial evidence simpliciter.

(d)

Generally, tendency evidence is relied upon to prove that a particular person the same person committed different acts at different times. It relates to proof of the crime and the identity of the offender.

(e)

Generally, coincidence evidence is concerned with proving that the same person the defendant committed both (or more or all) of the alleged crimes.

Quick and nasty examples of each (a)

Tendency evidence evidence that the defendant has sexually assaulted prepubescent girls aged over 10 years, and that he has done so showing the same or similar sexual preferences and patterns of behaviour in the past.

(b)

Coincidence evidence Two burglaries occur, the places burgled are shops with cash registers.

The shops are side-by-side.

CCTV shows that burglaries occurred within 10 minutes of each other.

Each shop has been entered by throwing a brick from a pile outside through the front door glass.

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Each shop has its cash register forced using a knife or screwdriver.

Each shop has its charity donation tins emptied. and DNA are found on it.

Prosecution seeks to use the inherent improbability that two separate offenders committed these offences independently to show that the defendant identified

by DNA and fingerprints committed both counts (see Evidence Act s. 97 and Evidence Act s. 98). (c)

(3)

(4)

As is always the way with indirect evidence, it should not be forgotten that other inferences may be open. So, as we are dealing with inferences open on evidence, the sorts of considerations which apply to circumstantial evidence simpliciter apply here. I repeat this because not only does the judge have to keep this in mind, but counsel, esp defence counsel, must too.

The starting point for each area (a)

Is that such evidence is not admissible.

(b)

So the onus is on the prosecution to show that the prima facie rule against admissibility does not apply in a particular case. It is not on the defence to show

When can the rule against inadmissibility and tendency and coincidence evidence be departed from? The preconditions to admissibility: (a)

The prosecution must give a notice in writing see s. 97(1)(a) (re tendency) and s.

98(1)(a) (re coincidence).

(b)

The prosecution need to demonstrate that the tendency or coincidence evidence will either of itself, or in combination with other evidence, have "significant probative value". See s. 97(1)(b) (re tendency), s. 98(1)(b) (re coincidence).

(c)

Significant probative value see Evidence Act, s. 3 as to probative value .

Essentially this deals with the extent to which the evidence could (could not will) rationally affect the assessment of the probability of the existence of a fact in issue, but obviously this must be to a significant extent.

To be in this regard it must be "influential" in the context of fact finding. See IMM v The Queen [2016] HCA 14 at 46.

In assessing this a court must assume and proceed on the basis that the evidence is accepted by the finder of fact, that is, that the evidence will be found to be both credible and reliable (see IMM at 48).

(d)

In assessing probative value and its relative significance the advocate and the court needs to consider things like: how often the conduct occurred; how many people it happened to; how similar the conduct alleged was; 2

how similar in nature, status and situation the witnesses are; how distant or close in time the events are to each other; how detailed or generalised the conduct alleged is. the list of factors which might be relevant here is almost endless. for e.g. in Hughes (see below) an important factor in assessing the probative value was the commonality of the risk taking nature of the conduct was in the light of other, less unusual but still unusual factors present (i.e. a sexual interest in young girls, et cetera).

(5)

Some history (a)

The cases, especially those up until recently, frequently had recourse to cases decided under the common law or under the Evidence Act 1910.

(b)

References to these cases I think bedevils people being able to "come to grips" with tendency and coincidence evidence issues.

(c)

In short, as in just about every regard under the Evidence Act 2001, the 2001 Act is designed to facilitate the admission of evidence, that is, it is an Act written for prosecutors. It is important to remember that admissibility and as to its importance to the finder of fact on your trial or hearing.

That is, such evidence is often damning once it is admitted.

(d)

However, I think a good starting point in getting to grips with this area is to go and find an old "Cross on Evidence" from before 2001 and do some reading about "similar fact evidence" as it was once referred to. If you do so, I would urge you not to pick up a pen and not to start taking notes. Just have a read.

(e)

At common law, similar fact evidence as it was called, was recognised as being very influential in its effect on juries as well as being potentially quite likely to prejudice the jury against the defendant. At common law the prosecution would seek to have it admitted precisely because it was so influential. (Note the same word is used in IMM in 2016.)

(f)

At common law, evidence of character or of misconduct of a defendant on occasions other than the charged event/s which was used to show the defendant had a propensity to commit the crime or a crime of a particular kind, or that the defendant was the type of person to have committed the crime charged was not admissible unless it was said to be "highly probative" of a fact in issue. At common law the starting point is that such evidence was not admissible.

(g)

At common law the rule could be departed from not only to prove facts by the prosecution, but also to rebut a defence offered.

(h)

The common law position was that evidence that simply showed a propensity to commit crimes or a type of crime is not admissible ( ere propensity evidence ), unless the similarities between those and the offences charged are said to be so "striking" that only the most "extraordinary coincidence" could possibly explain DPP v Boardman [1975] AC 421 at 444 and 445. See also Harriman v R [1989] 167 CLR 590 and Pfennig v VR [1995] 127 ALR. See also Hoch v R [1988] 165 CLR 292. So if the evidence was so strongly probative, the exclusionary rule was abandoned. I would suggest that you read those cases before you start delving into s. 97 and 98 "cold".

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(6)

(i)

The common law position, put bluntly and very simplistically, was that in most cases there would need to be "a striking similarity" between the similar fact evidence and the charged conduct. For example, a very similar or unusual modus operandi or similar sexual predilections. Other terms used were that there was required to be an "underlying unity, system or pattern" in the tendency evidence and the charges brought. See R v Fletcher [2005] NSWCCA 338 at para. 60.

(j)

So at common law generally, only quite clear and plainly similar evidence could be admitted, more cogent and more pointed evidence was necessary than is permitted to be used under the 2001 Act as recently discussed in Hughes (see below).

A recap (a)

Tendency and coincidence evidence is, in first instance, inadmissible.

(b)

To be admissible it must have significant probative value to prove who committed the crime or to disprove a defence be proceeded by the giving of a notice by the party calling it.

(c)

What acts can be relied upon? (i)

(ii)

, i.e. acts entirely separate to the charges that need to be proved. Example: call the evidence of say, (a) earlier crimes or behaviour allegedly committed by the defendant against other people of the same type; or (b) or calling evidence of earlier crimes the defendant has been convicted of. This evidence might be from the same complainant or from others. d Type 1 - In a joint trial of a number of complaints against one defendant, evidence of offences against different complainants may be crossadmissible as against each other.

Type 2 In a trial of a number of counts regarding the same complainant, each separate complaint can be cross-admissible as on the others. An example: one complainant, three counts of rape, a very strong case including corroboration on one count but not so strong on the others.

(d)

(7)

Remember tendency and coincidence evidence can be called not just to prove guilt but also to refute a defence. Where it is called to do that, a court may dispense with

What is admissible as tendency evidence? (a)

In the "olden days", pre the 2001 Act, the scope of similar fact evidence to be admitted was far more limited than it is now.

(b) charged conduct to get there, i.e. striking similarity cases. Now, no striking similarity is required in re tendency evidence. However, the evidence called here 4

can often have that striking similarity. The more similar it is, usually, the more powerful it is.

(8)

(c)

The high water mark here is concerning the lack of any requirement of striking similarity is Hughes [2017] HCA 20.

(d)

Remember the word "could" in the definition of probative value under the Act. capable of doing in the mind of jurors which is the focus, not what the judge thinks of it or its inherent reliability.

(e)

The focus is on the extent to which the tendency or coincidence evidence increases the likelihood that the defendant committed the charged acts.

Sex cases (a)

Tendency notices are most commonly seen in sex cases.

(b)

Mostly evidence which is notably similar or has a significant number of common features will be admissible. When it is admitted it is usually very powerful evidence

(c)

But the conduct need not be identical or even be strikingly similar to be admissible under the Act. So always remember those common law principles have been really eroded by the 2001 Act.

(d)

Generally, the greater degree of commonality of detail of the offending and the circumstances surrounding it have to the tendency evidence, the greater the chances it will be admitted. The more distinctive it is, the greater the chances it will have significant probative value. Here see Hughes v The Queen at paragraph 19 and on.

There the High Court rejected the notion that the tendency evidence and the charged acts needed to share any "underlying unity" or or . While noting that very often a similarity will be apparent, the High Court rejected that as the touchstone for admissibility under s. 97.

(e)

Hughes is well known. It involved allegations of indecent dealing with a number of young children by the defendant, a well known actor. Tendency evidence involving a wide array of sexual interactions with numerous young children by the defendant and was admitted against him on his trial. offences involving girls aged between 6 and 15 years. The activity included digital penetration of 14 and 15-year-old girls, and getting girls aged between 6 and 8 to masturbate him, him rubbing his penis on a 9-year-old, asking a 15-year-old to touch his penis and exposing himself to girls aged 12 and 13 years. So some behaviours showed common traits, others did not.

(f)

On appeal his conviction was set aside by the New South Wales Court of Appeal.

The New South Wales Court of Appeal ruled that only evidence of other children which involved similarly detailed types of sexual interactions could be used as tendency evidence, not all that was sought to be tendered by the prosecution.

(g)

The High Court rejected that. It found that all the evidence which was sought to be tendered showed the defendant, a mature man, had a sexual interest in: (i)

young (under 16 years of age),

(ii)

girls,

(iii) that he met through friends and family, 5

(iv) showed that he acted upon that intent even in risky circumstances where there was a high chance of being caught.

(9)

(h)

Hughes was a case where a number of accounts against different complainants were tried together, so this was a cross-admissibility case. He was found guilty on about nine out of 10 counts. The defendant appealed to the High Court and argued that the Court of Criminal Appeal was wrong and that the only evidence which would be admissible against him on any particular charge was evidence which was like the offence charged. This, therefore would have meant a number of separate trials. The High Court rejected that (and thereby once again rejected the Victorian Court of Criminal Appeals position in favour largely of that of the New South Wales Court of Appeal). The High Court held that s. 97 did not permit a restrictive approach, re what evidence may have "significant probative value". It accepted that people will differ about what is significant or not. It proceeded on the basis that people with a particular tendency may act upon it in dissimilar ways and the notion that a mature man would engage in sexual conduct with underage girls and would act on that inclination is of itself "unusual as a matter of ordinary human .

(i)

I think, however, that Hughes is perhaps not as revolutionary as it was initially thought to be. The High Court noted, in the same paragraph as listed above, that there was significant probative value in all the evidence sought to be tendered because the acts alleged also involved a "courting a substantial risk of discovery by friends, family members, work mates or even passers-by". I think this is a key feature.

(j)

As was discussed by the High Court shortly after in The Queen v Bauer [2018] HCA 40 at paragraph 59 and on, Hughes did not open the floodgates to the extent that some initially thought. Bauer noted that a lack of commonality of features of offending was more significant in a case involving an alleged sexual offender against a number of children. By contrast, Bauer was a case of alleged offences against a single complainant where the court found that there was less need for the evidence of sexual conduct to be in any way similar. The fact in issue there was the attraction to a particular young person, not to a class of persons.

Fighting the notice (a)

Traditionally, one way to oppose the admission of the evidence was to argue that it lacked substantial probative value because of the risk of concoction, contamination or collusion, for example, see L v Tasmania [2006] TASSC 59 per Underwood, CJ.

(b)

Using that argument if it was found by the trial judge that there was a substantial risk that the evidence of different complainants had been contaminated or concocted or there had been collusion between the witnesses about the allegation, then the evidence was not admissible because it thereby lacked significant probative value and no discretion as to its admissibility could arise. It fell at the first hurdle. In that case, if the tendency or coincidence evidence involved different complainants, the trials would therefore need to be separated and each case stood on its own without the benefit the prosecution got out of the tendency evidence going to the jury.

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(c)

Nevertheless, this approach was largely scotched by the High Court in IMM in 2016 (see above) adopting the position of the New South Wales Court of Appeal in R v Shamouil [2006] NSWCCA 112.

(d)

In any event in December 2022 the Evidence Act 2001 was amended, (no doubt at the behest of the DPPs around the country), and such challenges could no longer be argued. See Evidence Act s. 94(5).

(e)

Therefore it must be remembered that the matter of the prospects for collusion, contamination or concoction between witnesses is effectively a matter for juries and juries alone. It is no longer part of the s. 97 and s. 98 assessment as to admissibility.

(f)

Even if s. 97 and 98 are satisfied, in criminal matters, s. 101(2) is also applicable.

That provides that such evidence can only be used against a defendant if its probative value outweighs the danger of unfair prejudice to the defendant. Always keep this in mind.

(g)

Section 101(2) is a balancing act, not a discretion.

(h)

Remember here that unfair prejudice is not the same as prejudice in the sense that the evidence which happens to be highly cogent, powerful or damning evidence of guilt. The prejudice must be an unfair one, that is, there must be a real risk that the jury will use the evidence "irrationally or improperly". See Taylor v R [2020] NSWCCA 355.

(i)

As far as Magistrates are concerned, s. 10(2) will have little work to do.

Magistrates must expose their reasoning. They must explain the use to which they do that.

(j)

But even in jury cases the balancing exercise will very often result in the evidence being admitted. This is precisely because its often such powerful evidence of guilt.

If that happens the jury will need to be warned very carefully not to misuse the evidence by the judge see R v GM [2016] NSWCCA 78. This case is authority for the proposition that in undertaking the balancing exercise under s. 101, the trial judge is entitled to take into account the "ameliorating effect of jury directions in relation to the issue".

(k)

It noted that s. 101 and s. 137 fulfil similar functions despite the use of different language. It further noted that s. 97 and 98 do not permit the trial judge to engage in an assessment about the credit or weight of the tendency evidence. However, R v IMM is some authority for the proposition that if the tendency evidence is particularly incredible, farfetched or fanciful, then the evidence may be inadmissible because it necessarily lacks relevance, or that the time and trouble which the evidence would take at trial was such that it should not be admitted because of the lack of weight that such evidence would have.

(l) example. (m) Taylor is an example where s101 resulted in an appeal judge believing that such evidence should be excluded. The defendant was charged with a series of family violence offences against wife number two, allegedly committed in March 2018.

The prosecution relied on a tendency notice being evidence (in the form of a set of 7

agreed facts signed by the defendant on his plea of guilty to violently assaulting his first wife in 2008).

On appeal Bell, P, held that the 2001 evidence was admissible under s. 97, but that pursuant to s. 101, it should not be used against the defendant because (1) the 2008 offences occurred in entirely different circumstances to the 2018 offences; (2) the 2008 offences occurred a long time before the 2018 allegations; and (3) the notice relied upon was expressed with "relative generality" and that the evidence did not proof that the defendant was guilty of the conduct in question on his trial.

Sadly, however, it is to be noted that the majority of the Court of Criminal Appeal, (Walton and Beech-Jones JJ ) found that the probative value outweighed the danger of unfair prejudice, and the jury was not likely to have "an adverse emotional response" to the defendant as a result of it.

Importantly for counsel, esp defence counsel, the fact that 1 of 3 judges had a different view shows that each case stands on its own facts and that different judges give up s101(2).

(10) Getting down to brass tacks (a)

Tendency and coincidence evidence is very often an incredibly powerful tool in the hands of the prosecution.

(b)

In determining its admissibility under s. 97 and 98 it is not the job of the court or counsel to argue about the reliability or creditability of that evidence before the judge.

Counsel and the trial judge must instead focus on the narrow issue of what effect the evidence "could" rationally have taken at its highest, on whether the defendant acted in a certain way on the occasion/s he is charged with.

(c)

Because of s. 94(5), the matter of collusion, concoction and contamination is irrelevant to the issue of admissibility (do not fall down the rabbit hole of cases about that).

(d)

Instances where s. 101 (2) operates to stop otherwise admissible evidence under s.

97 and 98 being used will be reasonably rare.

(e)

But judicial officers have wrestled with these issues for 20 years and views differ, s. 101. (See 9(c) above.)

(f)

Focus keenly in these cases on ensuring that the trial judge properly directs the jury about the evidence especially where there are alternative inferences available on the evidence (especially coincidence evidence). Those should be raised clearly with the jury.

(g)

Research in Australian Criminal Trial Directions for these.

(h)

Focus keenly on ensuring the trial judge carefully instructs the jury that they must not use the evidence improperly, be so emotionally affected by the tendency evidence as to fail to calmly assess the case etc.

(i)

As defence counsel your address to the jury should also focus on those issues. You may well be able to warn a jury in far blunter, more direct and less legalistic ways 8

than judge will. Have the courage to do so. That is what you are paid to do even in really tough cases.

(11) How to attack tendency and coincidence evidence once admitted (a)

Concoction, contamination and collusion remain relevant to the fact finder.

So work on that area if you can on the evidence.

Simply cross-examining to that effect that this could have happened is unlikely to be helpful here.

Demonstrate the extent of the opportunity the witnesses had to "get together" to about it, i.e. the defendant are present.

Explore any links between them. Explore common motivations to do so.

Remember a jury may have some residual reticence about a particular charge or in re a particular complainant, even if they believe others and if tendency evidence has been admitted.

Going further, sometimes you can even use the similarities in accounts between witnesses and exploit same as a weapon in your arsenal. So or effective on some counts.

Look for common or unusual language in descriptions that are used by various witnesses. This can be an entry point for doubts.

Explore the dynamics in the relationships between the witnesses, e.g. does Witness 2 want to please Witness 1? etc etc.

Explore things such as talk in the family about the defendant that the witness may have been exposed to. Sometimes your clients dodgy reputation as a creepy type can assist you.

Often these cases have multiple counts/multiple complainants. Do not view

(b)

So simply submitting to a jury that the two girls are sisters and therefore close and would likely talk a lot, will not significantly detract from the evidence in my experience.

(c)

There is a need to be brave in cross-examination here. Tendency and coincidence cases can seem overwhelming esp in sex cases. But once you realise the evidence is going in you must be both inventive, careful, thorough and maybe be prepared to take some considered risks in cross-examination.

(d)

You need to be precise in cross-examination here. If

a scenario here that

(e)

t be afraid to suggest a motive which is feasible if one suggests itself.

(f)

Preliminary proceedings can be very important to explore this. However, careful instruction taking about the facts from your client and perhaps members of his family may also provide you with assistance. Sometimes keeping your powder dry to a greater or lesser extent until trial may also be very effective.

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witness (or the prosecutor) time to think about your line of attack before trial if you can help it (g)

It is important to remember that just because it can be powerful evidence, all is not up to proof or, in court, turn out to be unimpressive or obviously partisan.

(h)

Never forget that the jury or Magistrate need to be satisfied of beyond reasonable doubt about the charges individually. You may not be successful in defending all charges, but your efforts might mean you are successful for some.

(i)

Keep plugging away during the trial. Juries listen to what judges and lawyers tell them.

(j)

Things like fairly generalised similarities between allegations and the existence of significant differences between allegations are still very relevant to the matter of weight. This is a matter for the jury alone and therefore an area where you can still do damaging work as a defence counsel.

(k)

So once it is apparent that the evidence is going to go in focus on the facts the old cases, that is, those prior to IMM, Hughes and Bauer, particularly the old common law cases, can still help you in terms of finding ways to attack the weight to attach to such evidence, the language to use to do so, as well as the language to effectively use in addressing the jury (and judges). satisfaction in being able to say to yourself that, despite the tendency evidence which seemed overwhelming, you made a tough fight of it in a really professional, courageous way. That matters.

(j)

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