✅Tendency + Coincidence

In relation to Tendency and Coincidence evidence, s101 grants the Court the power to dispense the requirement for a party to provide reasonable notice. True or false?

False - s 100

Inferential reasoning is where someone is asked to draw an inference based on certain facts or events.

True

What is 'an inference' in evidence law?

A rational conclusion that has been deduced, or proved, from the presented facts.

Evidence used for another purpose, such as credibility, can also be used for a tendency or coincidence purpose, without meeting the requirements of s 97 or s 98.

False

In relation to both Tendency and Coincidence evidence, s101 provides imposes an additional threshold restrictions where the evidence is adduced by the Prosecution and the Defence.

False - The additional threshold set out in s101, only relates to evidence lead by the Prosecution, against the Defendant.

In order to adduce tendency evidence or coincidence evidence, it is necessary to give notice in writing to each other party.

True

‘Significant does not need to be ‘substantial’ but does need to be ‘important’ or ‘of consequence’

IMM v The Queen

evidence that is ‘important’ or is ‘of consequence’

R v Lock (1997)

something more than mere relevance but something less than a ‘substantial’ degree of relevance

R v Lockyer (1996)

‘[t]here is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.’

Hughes v The Queen

Before a party can rely on tendency evidence, they must give reasonable notice in writing to each other party if they intend to adduce such evidence.

True - Under s97(1)(a) reasonable written notice is required. See also s97(2) and s100.

Under section 94(1), to what type of evidence do the tendency and coincidence rules not apply?

The tendency and coincidence rules do not apply to evidence that is relevant only to credibility.\

In what two types of proceedings are the tendency and coincidence rules excluded under section 94(2)?

Bail proceedings and sentencing proceedings.\

Under section 94(3), when do the tendency and coincidence rules not apply to a person's character, reputation, conduct, or tendency?

When the person's character, reputation, conduct, or tendency is a fact in issue in the proceeding.\

According to section 94(4), is the propensity or similar evidence rule relevant to tendency or coincidence evidence about a defendant?

No, the propensity or similar evidence rule is not relevant to tendency or coincidence evidence about a defendant.\

Under section 94(5), what three potential possibilities cannot be considered by the court when determining probative value under sections 97, 97A, 98, or 101?

The possibility that the evidence may be the result of collusion, concoction, or contamination.\

How many actions or events are required to establish a tendency compared to coincidence reasoning?

A tendency can be established by a single action, whereas coincidence reasoning must be based on evidence of at least two events.\

What is the fundamental difference in logical direction between tendency reasoning and coincidence reasoning?

Tendency reasoning moves from person behaviour to making an event more likely, whereas coincidence reasoning moves from multiple events happening to making a person more likely.\

What requirement regarding similarity differs between tendency and coincidence evidence?

Similarity is not strictly required for tendency evidence, whereas coincidence evidence requires striking similarity between events.\

What general rule is established under section 97(1) of the Evidence Act?

Evidence of a person's character, reputation, conduct, or tendency is not admissible to prove a person had a tendency to act or think a certain way unless notice is given and the evidence has significant probative value.\

Under section 96 of the Evidence Act, what is included in the definition of an act?

An act includes a failure to act.\

Does the tendency rule in section 97(1) apply to non-human legal entities such as corporations?

Yes, section 97(1) regulates inferences about the tendencies of a person, which includes a corporation.\

What two exceptions under sections 110 and 111 override the tendency rule?

The exception rules of character and expert opinion.\

What did the High Court decide in Hughes v The Queen regarding whether similarity is essential for tendency evidence?

Similarity is not essential for tendency evidence to have significant probative value, though close similarity is required when used to prove identity.\

What two interrelated matters must be considered under Hughes v The Queen to evaluate whether tendency evidence has significant probative value?

The extent to which the evidence supports the alleged tendency, and the extent to which that tendency makes the facts in issue more likely.\

What standard of notice detail was established in The Queen v Dennis Bauer?

The notice must be given in writing and must be sufficiently detailed to leave no room for doubt surrounding the intended evidence.\

Under section 97(2) and section 98(2), in what two situations does the requirement to give written notice not apply?

When the evidence is adduced under court directions under section 100, or when adduced to explain or contradict tendency or coincidence evidence adduced by another party.\

What power is conferred on the court under section 100(1) regarding notice requirements?

The court may direct that the tendency or coincidence rule does not apply to evidence despite a failure to give notice.\

What procedural difference applies under section 100(4) when applying for a section 100 direction in civil proceedings compared to criminal proceedings?

In civil proceedings, the application under section 100 does not need to be made with notice to the other party.\

According to R v AC, what is the sole purpose for which the section 100 power to waive notice may be exercised?

The power is confined to the interests of justice as they are affected in the particular case, rather than upholding the rule of law to punish Crown delay.\

In Martin v The Queen, why was evidence of the deceased victim's quiet and polite demeanor during jujitsu class admissible despite lack of notice?

Because it was adduced to contradict defence evidence that the victim acted aggressively when delivering drugs.\

What definition of significant probative value was established by the High Court in IMM v The Queen?

The capacity of the evidence to contribute to the proof or disproof of a fact in issue, being more than simply making the fact more or less probable.\

Under IMM v The Queen, how must a court treat the reliability and credibility of evidence when assessing probative value?

The court must assess the evidence taken at its highest, ignoring reliability and credibility unless the evidence is so preposterous that it lacks rational capacity.\

Under section 97A(2), what statutory presumption applies to tendency evidence in criminal proceedings for child sex offences?

Tendency evidence is presumed to have significant probative value if it concerns the defendant's sexual interest in children or acting on that interest.\

How can a court displace the section 97A presumption of significant probative value under section 97A(4)?

The court may determine that the evidence does not have significant probative value if satisfied there are sufficient grounds to do so.\

What rule is set out in section 98(1) regarding coincidence evidence?

Evidence of two or more events is inadmissible to prove an act or state of mind on the basis of improbable coincidence unless notice is given and the court thinks the evidence has significant probative value.\

According to section 98(1A), can one of the events used to support coincidence reasoning be the actual fact in issue at trial?

Yes, one or more of the events used to support coincidence reasoning can be the event that is a fact in issue in the proceeding.\

Under Regulation 5 and Regulation 6 of the Evidence Regulations 2026, what four particulars regarding conduct or events must be included in a notice?

Date, time, place, particulars of circumstances, and names of observing persons.\

What additional detail must be included in a tendency or coincidence notice in civil proceedings under the Evidence Regulations 2026?

The address of each person named in the notice.\

Under Jacara Pty Ltd v Perpetual Trustees WA Ltd, what is the first factor used to determine whether coincidence evidence has probative value?

The cogency of the evidence relating to the conduct of the relevant person, demonstrated by a similarity that makes coincidence improbable.\

Under El-Haddad v The Queen and R v Handy, name four factors relevant to assessing the strength of an inference in coincidence reasoning.

Temporal proximity of events, detail similarity, number of occurrences, surrounding circumstances, unifying features, or intervening events.\

Under section 101(2), what balancing test governs the admission of prosecution tendency or coincidence evidence against a defendant in criminal proceedings?

The probative value of the evidence must outweigh the danger of unfair prejudice to the defendant.\

Does the section 101(2) balancing test apply to prosecution tendency or coincidence evidence adduced to explain or contradict evidence adduced by the defendant?

No, sections 101(3) and 101(4) state that section 101(2) does not apply to prosecution evidence offered to explain or contradict defence tendency or coincidence evidence.\

What legislative modification was made to section 101(2) on 1 July 2020?

The word substantially was removed from the requirement, changing the test to whether probative value outweighs unfair prejudice.\

How was unfair prejudice defined in ALRC Report 26 and R v Lockyer?

A real risk that the evidence will be misused by the jury in an improper, emotional, or logically unconnected manner, or given more weight than it deserves.\

Under Davidson v R, what must a trial judge consider regarding jury directions when balancing unfair prejudice under section 101(2)?

Whether directions can be given to remedy or ameliorate any unfair prejudice that might otherwise occur.\

In R v Joiner, what evidence was admitted to disprove the defendant's claim that his wife died by accident?

Evidence from his ex-wife and ex-girlfriends describing high-level violence and strangulation perpetrated against them by the defendant.\

In R v Straffen, why was evidence of two previous uncharged murders committed by Straffen admissible?

It showed he had a tendency to kill young girls in a distinct manner, and his presence near the crime scene identified him as the killer.\

In Jacara Pty Ltd v Perpetual Trustees WA Ltd, why did the tenant's evidence of other agent representations fail the significant probative value test?

Because the evidence involved different types of representations made at different development stages, leaving open the possibility of no general tendency.\

In Perry v R, why was evidence concerning the death of Mrs Perry's de facto husband inadmissible as coincidence evidence?

Because his cause of death was barbiturate overdose rather than arsenic poisoning, making it insufficiently similar to the arsenic poisoning deaths.\

What facts in Makin v Attorney-General for NSW established objective improbability of coincidence?

The discovery of twelve buried baby corpses in backyards of properties occupied by baby farmers who claimed the child died of natural causes.\

What common law test for propensity evidence was established by the High Court majority in Pfennig v The Queen?

Similar fact evidence is admissible only if it bears no reasonable explanation other than the inculpation of the accused.\

Did the NSWCCA in R v Ellis hold that the common law Pfennig test governs admissibility under section 101(2) of the Evidence Act?

No, R v Ellis held that section 101(2) established a statutory balancing regime that replaced the common law Pfennig test.\

In R v Johnston, why was computer pornography depicting sleeping children inadmissible as coincidence evidence regarding a child drug assault charge?

Because there was no relevant similarity between assaulting children and possessing pornography.\

In Azzi v The Queen, why was the defendant's lie that methamphetamine was sugar inadmissible as coincidence evidence regarding heroin possession?

Because making a false statement about one drug was not relevantly similar to the physical possession of other drugs in the wardrobe.\

In Gibson v Askim, how were health inspection findings of kitchen hygiene breaches used under tendency?

They were used as tendency evidence to infer that the cafe owner had a tendency to operate the cafe in an unsafe and poorly managed manner.\

In Gibson v Askim, how was evidence of six other cafe patrons contracting the exact same Salmonella strain used under evidence law?

It was used as coincidence evidence to show it was improbable that the multiple infections occurred coincidentally without cafe fault.\

In R v Ellis, what unusual modus operandi linked the multiple break-in offences across rural towns?

Entry was achieved by removing rubber or aluminium window seals and lifting out intact glass panels without breaking them.\

What prohibition is imposed by section 95(1) and section 95(2) regarding evidence inadmissible under Part 3.6?

Evidence that is not admissible under the tendency or coincidence rules cannot be used to prove that matter even if it is relevant for another purpose.\

Under Evidence Regulations 2026 Regulation 5(2), what order may a criminal court make regarding witness identity in a tendency notice?

The court may order the notifying party to disclose the address of a person named in a tendency evidence notice.\

What is the effect on evidence if a party fails to give a required tendency or coincidence notice within a reasonable time without court leave?

The evidence becomes prima facie unusable for its tendency or coincidence use.