• DIRECTOR’S POLICY 21•
“Tendency and Coincidence Evidence”
24-7-2014
Background
21.1
Under Part 3.6 of the Evidence Act 2008 (“the UEA”) propensity and
similar fact evidence are now called tendency and coincidence
evidence respectively. This policy should also be read in conjunction
with the Director’s Policy in relation to general issues arising out of
the Evidence Act 2008.
21.2
It should be noted that due to the overlap between the various areas
(eg, tendency evidence, relationship evidence etc) there is some
repetition throughout the policy. This is unavoidable as the same
issues arise in various contexts and the policy is designed so that each
part of the policy can be used as a stand-alone section.
Introduction
21.3
The starting point in determining admissibility under the UEA is
relevance (ss.55 and 56). Evidence may have more than one “use” so
it is extremely important to identify the bases upon which the
evidence is sought to be led. This is particularly important when
evidence is sought to be led for purposes including “tendency”,
“coincidence”, “relationship”, “context” and/or “guilty passion”. The
descriptions of these terms are helpfully set out online in the
Victorian Criminal Charge Book published by the Judicial College of
Victoria (‘JCV’).1 Reference should also be had to the JCV Uniform
Evidence Manual.2 Both manuals are accessible through Brucebase as
a drop-down within the “Open DB” icon.
21.4
In short, the JCV Criminal Charge book relevantly states the
following3 a) Differences between tendency and coincidence evidence - Care
must be taken to distinguish “tendency evidence” from
“coincidence evidence”.4 While the evidence that constitutes
“tendency evidence” and “coincidence evidence” may seem
similar, the type of inferential reasoning used by the jury differs
for each type of evidence:
1
http://www.justice.vic.gov.au/emanuals/CrimChargeBook/default.htm
http://www.justice.vic.gov.au/emanuals/UniformEvidenceManual/default.htm
3
http://www.justice.vic.gov.au/emanuals/CrimChargeBook/default.htm at Chapter 4.16.1.
4
R v Nassif [2004] NSWCCA 433; Gardiner v R [2006] NSWCCA 190; KJR v R (2007) 173 A
Crim R 226.
2
33. Tendency and Coincidence Evidence [2014-07-24]
1

In relation to coincidence evidence, the jury relies on the
improbability of events occurring other than in the way
suggested to infer the fact in issue (“coincidence reasoning”);

In relation to tendency evidence, the jury relies on the fact that
a person has a tendency to act in a certain way to infer the
fact in issue (“tendency reasoning”).5
b) Guilty Passion – A common type of tendency evidence is “guilty
passion” evidence. This consists of evidence that the accused has
acted in a sexual way towards the complainant on one or more
other occasions.6 The evidence may be admitted as tendency
evidence, to prove that the accused had an improper sexual
interest in the complainant and a willingness to express that
interest.7 In such cases, the jury may reason that if the accused
had an improper sexual interest in the complainant, a willingness
to give effect to that interest, and an opportunity to gratify that
interest, that makes it more likely that the accused acted in the
way alleged by the complainant.8
c) “Relationship Evidence”- Evidence that demonstrates the nature
of a relevant relationship, which may be used as circumstantial
evidence of the accused’s guilt.9
d) “Context Evidence”- Evidence that provides essential background
information, which may help the jury to assess and evaluate the
other evidence in the case in a true and realistic context.10
5
R v Nassif [2004] NSWCCA 433.
HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206; R v AH
(1997) 42 NSWLR 702; Rolfe v R [2007] NSWCCA 155; R v ELD [2004] NSWCCA 219; R v
Greenham [1999] NSWCCA 8.
7
HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206; R v AH
(1997) 42 NSWLR 702; Rolfe v R [2007] NSWCCA 155; R v ELD [2004] NSWCCA 219; R v
Greenham [1999] NSWCCA 8.
8
R v Ball [1911] AC 47; R v BJC (2005) 13 VR 407; R v VN (2006) 15 VR 113; Rodden v R
[2008] NSWCCA 53.
9
See, e.g., R v BJC (2005) 13 VR 407; Gipp v R (1998) 194 CLR 106; R v Vonarx [1999] 3
VR 618.
10
See, e.g., R v AH (1997) 42 NSWLR 702; R v Camilleri [1999] VSC 159; R v Sadler [2008]
VSCA 198.
6
33. Tendency and Coincidence Evidence [2014-07-24]
2
OVERVIEW
Step
Issue
Application
Effect
Paragraph
1
Determine the
(ultimate) facts
in issue
(1) Elements of the
offence;
Once the ultimate facts in
issue are determined,
consideration can be given
to “relevance”.
N/A
(2) Modes of complicity;
(3) Defences that may be
open.
2
Determine
whether the
evidence is
relevant (s.55)
Consider whether the
evidence is relevant to an
ultimate fact in issue and,
if so, on what
basis/bases.
If relevant on more than one
basis, detail the various
bases of relevance.
N/A
3
Notice
requirements
Reasonable notice is
required to lead evidence
for a tendency and/or
coincidence purpose
(even if the evidence is
also sought to be led on
another basis such as
context).
The evidence cannot be led
for a tendency or
coincidence purpose unless
notice requirements are met
or waived by the Court
(s.100).
Paragraphs
21.40-21.53
4(a)
Tendency
evidence
(including guilty
passion or sexual
interest)
The requirements in s.97
and (for the prosecution)
in s.101 must be met.
If not met, the evidence is
inadmissible. If the
requirements are met, s.137
will have no application.
Paragraphs
21.6-21.20
21.30-21.31
21.38
4(b)
4(c)
5
Coincidence
evidence
Relationship or
context evidence
Applicability of
UEA notice
requirements to
Accused
The requirements in s.98
and (for the prosecution)
s.101 must be met.
As per above.
Paragraphs
A clear articulation of the
way in which this type of
evidence is relevant is
required. Simply
labelling the evidence
“background” or
“surrounding
circumstances” is not
sufficient.
If admissible as relationship
evidence then ss.97, 98 &
101 have no application but
the discretions in Part 3.11
must still be applied
(particularly s.137).
Paragraphs
The notice requirements
contained within the
UEA apply equally to an
Accused.
The Crown must only
oppose application by an
accused for the notice
provisions to be waived
(s.100) where the lack of
notice results in unfair
prejudice to the Crown.
Paragraphs
21.21-21.31
33. Tendency and Coincidence Evidence [2014-07-24]
21.32-21.37
21.39
21.54-21.56
3
6
7
21.5
Judicial
Directions
Appellate review
Counsel appearing on
behalf of the Crown is
required to assist the
Court in relation to the
applicable jury
directions.
Misdirection or nondirection may lead to the
quashing of a conviction.
Paragraph
It has been held in
Victoria that the
principles in House v The
King do not apply upon
reviews of decisions
made pursuant to ss.97,
98 & 101. However, this
issue is presently the
subject of consideration
by the VSCA
(constituted by a court of
5).
If the principles in
Paragraphs
21.58-21.59
21.57
House v The King do not
apply, there is no
requirement to establish
specific error upon appeal.
Summary - The following contains a summary of the main principles
contained within this policy (a)
Identifying the basis upon which evidence is sought to be led
– As evidence can be relevant and admissible on several bases it
is the Director’s Policy that the bases upon which the evidence
is sought to be led must be clearly identified. It is not
appropriate to seek to justify admission of evidence on the basis
that it is not tendency or coincidence evidence (and therefore
does not fall within the exclusionary rule) when the evidence is
really intended to be used for such a purpose.11 [refer more
particularly to paragraphs 21.8-21.9, 21.24-21.25].
(b)
Uncharged acts as guilty passion in single complainant
matters - It is the Director’s Policy that 
Consistent with the preponderance of authority, evidence of
guilty passion is to be considered as “tendency evidence” as
defined in s.97 of the UEA.12

Consistent with the decision of the Victorian Court of
Appeal (“VSCA”) in JLS,13 it is open to use evidence of
11
Refer, for example, ‘Uniform Evidence Law’ 9th Edition, Stephen Odgers SC, Lawbook
Company 2010 (“Odgers”) at [1.3.7260], p.452; citing R v Adam (1999) 106 A Crim R 510 at
[31] and ALRC 102 on Uniform Evidence Law (“ALRC 102”) at [11.93].
12
JLS v R [2010] VSCA 209; R v Greenham [1999] NSWCCA 8 at [22]-[23]; Qualtieri v R
(2006) 171 A Crim R 463; 485 at [74]; R v AH (1997) 42 NSWLR 702 at 708-709. CF
Hodgson JA in Leonard v R (2006) 67 NSWLR 545, 557 at [49]-[52].
13
JLS v R [2010] VSCA 209. It is to be noted that in JLS the VSCA refused to follow the
obiter dicta of Howie J in the NSWCCA matter of Qualtieri v R (2006) 171 A Crim R 463,
33. Tendency and Coincidence Evidence [2014-07-24]
4
uncharged acts from a complainant for a tendency purpose
in matters involving a single complainant.

It is also possible to lead these uncharged acts as
relationship or context evidence. Whether uncharged acts
are led as tendency evidence and/or relationship/context
evidence is a matter which is to be determined on a case-bycase basis. [refer more particularly to paragraphs 21.11 &
21.38-21.39].
(c)
Use of evidence for both tendency and coincidence purposes
– It is possible to lead evidence for both tendency and
coincidence purposes.14 The type of inferential reasoning
differs according to the purpose intended. For example, in
matters involving alleged sexual offending against multiple
complainants it is the evidence of the alleged acts which forms
the basis of the tendency reasoning. However, coincidence
reasoning involves the use of the evidence of the complaints of
the alleged offending which are led to demonstrate the
improbability of several complainants making the same false
complaint.15 It is the Director’s Policy that, consistent with the
NSW practice, OPP staff should seek to lead evidence for both
tendency and coincidence purposes unless the reasoning process
that is open clearly only falls within one of these categories.16 It
is then a matter for counsel appearing on behalf of the Crown to
determine whether the evidence should be sought to be used for
both purposes (tendency and coincidence) or only one (if any)
of these purposes, prior to determination by the trial judge.
[refer more particularly to paragraphs 21.10 & 21.25].
(d)
Significant probative value –

To have “significant” probative value, the evidence
(considered separately or jointly) must be more than merely
relevant, it must be “important” or “of consequence”17 but
need not be of “substantial” probative value.18
494-495 in which his Honour doubted whether such evidence could meet the high thresholds
set out in s.97 & 101. See also DJV v R [2008] NSWCCA 272 at [14].
14
CGL v DPP (2010) VR 486 at [37] citing R v Fletcher (2005) 156 A Crim R 308; R v Smith
(2008) 190 A Crim R 8.
15
See, for example, PNJ v DPP [2010] VSCA 88 at [11]. When discussing the reasoning
process involved with coincidence evidence, the Court endorsed the approach stated in Hoch
that the probative value of the evidence lies in the improbability of the witnesses giving
accounts of happenings having the requisite degree of similarity unless the happenings
occurred (emphasis added); see also CGL v DPP (2010) VR 486 at [23] & [37].
16
See also R v Ellis (2003) 58 NSWLR 700 as an example of the prosecution seeking to lead
evidence for both tendency and coincidence purposes involving numerous burglaries where the
fact in issue was identification.
17
R v Lockyer (1996) 89 A Crim R 457 at 459.
18
Ibid. Refer also to the Explanatory Memorandum to the Evidence Bill 2008 in relation to
s.97 (p.32).
33. Tendency and Coincidence Evidence [2014-07-24]
5

“There is no single criterion for determining whether the
asserted similarities are sufficient to render the evidence of
‘significant probative value’”.19 It is now clear in Victoria
that significant probative value can be established through
various ways (eg, pattern of conduct or modus operandi or
underlying unity etc).20

It appeared from the earlier VSCA decisions21 that a higher
degree of similarities (namely that the evidence had to be
distinctive or remarkable) was required than in comparison
with decisions of the NSW Court of Criminal Appeal
(“NSWCCA”). However, it must be borne in mind that each
case is determined on its own facts22 and caution must
therefore be exercised in equating “passages” contained
within judgments to “statements of principles”.23 In this
regard, it may be that references in some earlier VSCA
decisions24 to “distinctive” or “remarkable” features were
not statements of principles or pre-requisites to admissibility
but were confined to the facts of those cases. Indeed, more
recent VSCA decisions25 seem to suggest that significant
probative value can be established through a pattern of
behaviour, underlying unity or modus operandi without
having to necessarily find distinctive or remarkable
similarities.

The “conduct” need not be identical, as the similarities of
the surrounding circumstances can be taken into account
when assessing whether the evidence has “significant
probative value”.26 [Refer more particularly to paragraphs
21.14 - 21.20, 21.27 - 21.28].
19
PNJ v DPP [2010] VSCA 88 at [12].
In relation to tendency evidence refer to the VSCA decisions of PG v R [2010] VSCA 289 at
[69]-[71]; KRI v R [2011] VSCA 127 at [58]; and the NSWCCA decision of R v Ford (2009)
273 ALR 286 at [38-45] citing various authorities including R v Cittadini (2008) 189 A Crim R
492; R v Harker [2004] NSWCCA 427 at [57]; R v Li [2003] NSWCCA 407; R v Fletcher
(2005) 156 A Crim R 308; R v Smith (2008) 190 A Crim R 8. In relation to coincidence
evidence refer to the VSCA decisions of GBF v R [2010] VSCA 135 at [27] and KRI v R
[2011] VSCA 127 at [58].
21
CGL v DPP (2010) VR 486; PNJ v DPP [2010] VSCA 88.
22
KRI v R [2011] VSCA 127 at [58]; see also the comments of the VSCA in the recent nonUEA decision in MRO v R [2010] VSCA 240 at [55] pointing out that cross-admissibility is
determined on the facts in each particular matter, noting that little assistance can be obtained
from other decisions in different factual circumstances. This reasoning would also apply
equally to cross-admissibility under the UEA.
23
See for example, the comments of the court in GBF v R [2010] VSCA 35, [28]-[29].
24
CGL v DPP (2010) VR 486 at [31], citing AE v R [2008] NSWCCA 52 at [42]; PNJ v DPP
[2010] VSCA 88 at [17] – [22].
25
NAM v R [2010] VSCA 95 at [27]; GBF v R [2010] VSCA 135 at [27], PG v R [2010] VSCA
289 at [68] – [71]; KRI v R [2011] VSCA 127 at [57] – [58].
26
NAM v R [2010] VSCA 95, [14-15] endorsing the pre-UEA approach established in R v
Papamitrou (2004) 7 VR 375; R v Smith (2008) 190 A Crim R 8 at [17].
20
33. Tendency and Coincidence Evidence [2014-07-24]
6
(e)
Significant probative value: whether the reliability of the
evidence is to be assumed- This issue has particular relevance
in relation to multi-complainant sex matters in the context of the
possibility of the “contamination”27 of the witness’ evidence.
The following represents the current position in both Victoria
and NSW in this regard –

For the purpose of determining the probative value of
evidence pursuant to ss.97(1)(b), 98(1)(b), 101(2), 135 &
137, the trial judge assumes that the evidence will be
accepted by the jury, unless no reasonable jury could accept
it.28

The trial judge has to consider whether, on the material
before the Court, there is a reasonable possibility of
contamination.29 (Cf s398A(3) Crimes Act 1958, now
repealed).30 It is to be noted that there has to be a “real
chance”, rather than a “speculative” chance of concoction.31
The onus is on the Crown to negate this “real chance”.32
Reference may be had to decisions of the NSWCCA in AE33
and BP34 and the VSCA in KRI35 for examples of recent
cases involving the issue of “contamination”. It is the
Director’s Policy that there should be a legitimate forensic
basis to support the conduct of a voir dire to determine
whether there is a reasonable possibility of contamination.
In matters involving child or cognitively impaired
complainants it is preferable that the issue of
27
In PNJ v DPP [2010] VSCA 88 at [24] the court referred to “contamination” as including
“concoction” and “innocent infection”.
28
R v Shamouil [2006] NSWCCA 112, [63] –[64]; R v Mundine (2008) 182 A Crim R 302
at[33]; R v Ford (2009) 273 ALR 286 at [46] – [49]; R v PWD [2010] NSWCCA 209 at [57];
NAM v R [2010] VSCA 95 at [23]; JLS v R [2010] VSCA 88 at [18] & [26]; PG v R [2010]
VSCA 289 at [62]; KRI v R [2011] VSCA at [27]-[31] & [53]-[55].
29
The authorities have taken the reasonable possibility of “contamination” into account at both
stages of the test - when determining significant probative value pursuant to ss.97(1)(b),
98(1)(b) and pursuant to s.101(2) when determining whether the probative value evidence of
the evidence substantially outweighs the prejudicial effect. In relation to ss.97(1)(b) &
98(1)(b) refer to R v Colby [1999] NSWCCA 261 at [107]; BP v R; R v BP [2010] NSWCCA
303 at [110] & ff; PNJ v DPP [2010] VSCA 88 at [24]-[28]. In relation to s.101(2) refer to R v
OGD (No.2) (2000) 50 NSWLR 433; R v F (2002) 129 A Crim R 126; AE v R [2008]
NSWCCA 52 at [44].
30
It is to be noted that the issue of “contamination” was considered in ALRC 102 at paragraphs
11.52-11.75 and by the Tasmania Law Reform Institute, Issues Paper No. 15, “Evidence Act
2001, Sections 97, 98 & 101 and Hoch’s case: Admissibility of Tendency and Coincidence
Evidence in Sexual Assault Cases with Multiple complainants” issued September 2009. As at
the time of writing it appears as though the final report has not been published.
31
R v Colby [1999] NSWCCA 261 at [111]; R v OGD (no 2) (2000) 50 NSWLR 533 at [74],
[112]; BP v R; R v BP [2010] NSWCCA 303 at [110] & ff.
32
R v OGD (no 2) (2000) 50 NSWLR 533 at [74]; R v F (2002) 129 A Crim R 126 at [48]; BP
v R; R v BP [2010] NSWCCA 303 at [110] & ff.
33
AE v R [2008] NSWCCA 52
34
BP v R; R v BP [2010] NSWCCA 303 at [110] – [126].
35
KRI v R [2011] VSCA 127.
33. Tendency and Coincidence Evidence [2014-07-24]
7
“contamination” be explored during the Special Hearing to
avoid such complainants having to give evidence twice (at
the Special Hearing and again at voir dire). Counsel
appearing on behalf of the Director must ensure that such
applications are not used merely as a “fishing expedition”.
However, it is clear from the authorities that the exploration
of this “possibility” is open to an accused and this should
not be unfairly circumvented. [refer more particularly to
paragraph 21.17].
(f)
Notice requirements (Prosecution) - The prosecution must
give reasonable notice in writing of reliance on the evidence for
a tendency or coincidence purpose (ss.97(1)(a) and 98(1)(a)). It
is the Director’s Policy that OPP solicitors are responsible for
drafting UEA notices which must be settled by counsel
appearing on behalf of the Crown and served/filed in
accordance with the applicable Practice Notes of the Courts.
The notices should be as detailed and specific as is permitted by
the evidence. [refer more particularly to paragraphs 21.4021.53].
(g)
Notice requirements (Accused) - The notice requirements set
out in the UEA also apply to an accused person. It is the
Director’s Policy that the Crown should only oppose an
application on behalf of the accused for the notice provisions to
be waived pursuant to s.100 UEA where the lack of notice
results in an unfair prejudice to the Crown.
If these
circumstances arise, instructions must be obtained from a
Crown Prosecutor (including consideration of the
appropriateness of an adjournment) prior to opposing the
accused’s application for waiver. [refer more particularly to
paragraphs 21.54-21.56].
(h)
Jury Directions - It is the Director’s Policy that, consistent with
the obligation of counsel to ensure that trial judges do not fall
into error,36 counsel appearing on behalf of the Director must be
aware of the applicable authorities relating to jury directions and
assist the court accordingly. [refer more particularly to
paragraphs 21.56 and 21.57].
(i)
Appellate review – Refer to paragraphs 21.58-21.59.
36
See R v Clarke and Johnstone [1986] VR 643 at 661. It is to be noted that the duty falls on
both prosecutor and defence counsel: see R v Wright [1999] 3 VR 355 at 356 per Phillips CJ
and Charles JA and at 360-1 per Callaway JA.
33. Tendency and Coincidence Evidence [2014-07-24]
8
Tendency Evidence
The Rule
21.6
Definition - “Tendency evidence” is defined in the Dictionary and
s.97 of the UEA as evidence used to prove that a person has or has
had a tendency to act in a particular way or have a particular state of
mind. It is a link in the process of proving that a person did behave in
a particular way on the occasion in question.
21.7
Elements - The elements of the tendency rule in s.97 are as follows:

the evidence must be evidence of the character, reputation,
conduct or tendency of a person - s.97(1);

the purpose (or use) of the evidence must be to prove that the
person had a tendency to do a particular act or have a particular
state of mind - s.97(1);

reasonable written notice must be given - s.97(1)(a);

the evidence has significant probative value (either by itself or
having regard to other evidence to be adduced) - s.97(1)(b).

NB1 – If evidence is admitted for another purpose, it cannot be
used for a tendency purpose unless the conditions set out in ss.97
and 101 are met – s.95.

NB2 - A reference to “doing an act” includes a reference to
“failing to do that act” - s.96.
Purpose/use
21.8
Identification of bases for admissibility - Evidence can be relevant
and admissible on several bases. In matters involving evidence which
could be used for tendency and relationship/context purposes,
particular care is required. In DJV,37 McClellan CJ at CL (others
agreeing) observed the following –
“There must be an issue in relation to the charged act or acts which
justifies the admission of evidence of other events including other
occasions of sexual abuse. Unless there is such an issue, the evidence
of other acts is likely to only be admissible, if at all, as tendency
evidence.”
21.9
37
Purpose - Accordingly, it is important to consider the purpose for
which the prosecution intends to lead the evidence in question. For
example -
DJV v R [2008] NSWCCA 272 at [28].
33. Tendency and Coincidence Evidence [2014-07-24]
9

is it proposed to rebut the existence of isolated incidents and the
way the accused is said to have behaved on each occasion?

is it led to show a sexual attraction in the complainant which the
accused was willing to act upon?
21.10
Use of evidence for both tendency and coincidence purposes – It is
possible to lead evidence for both tendency and coincidence
purposes.38 The type of inferential reasoning differs according to the
purpose intended. For example, in matters involving alleged sexual
offending against multiple complainants it is the evidence of the
alleged acts which form the basis of the tendency reasoning.
However, coincidence reasoning involves the use of the evidence of
the complaints of the alleged offending which are led to demonstrate
the improbability of several complainants making the same false
complaint.39 It is the Director’s Policy that, consistent with the NSW
practice, OPP staff should seek to lead evidence for both tendency
and coincidence purposes unless the reasoning process that is open
clearly only falls within one of these categories. It is then a matter for
counsel appearing on behalf of the Crown to determine whether the
evidence should be sought to be used for both purposes (tendency and
coincidence) or only one (if any) of these purposes, prior to
determination by the trial judge.
21.11
Use of uncharged acts as guilty passion in single complainant matters
- It is the Director’s Policy that 
Consistent with the preponderance of authority, evidence of guilty
passion is to be considered as “tendency evidence” as defined in
s.97 of the UEA.40 [refer to paragraphs 21.38-21.39 below in
relation to guilty passion or sexual interest].

Consistent with the decision of the VSCA in JLS,41 it is open to
use evidence of uncharged acts from a complainant for a tendency
purpose in matters involving a single complainant.

It is also possible to lead these uncharged acts as relationship or
context evidence. Whether uncharged acts are led as tendency
38
CGL v DPP (2010) VR 486 at [37] citing R v Fletcher (2005) 156 A Crim R 308; R v Smith
(2008) 190 A Crim R 8.
39
See, for example, PNJ v DPP [2010] VSCA 88 at [11]. When discussing the reasoning
process involved with coincidence evidence, the Court endorsed the approach stated in Hoch
that the probative value of the evidence lies in the improbability of the witnesses giving
accounts of happenings having the requisite degree of similarity unless the happenings
occurred (emphasis added); see also CGL v DPP (2010) VR 486 at [23] and [37].
40
JLS v R [2010] VSCA 209; R v Greenham [1999] NSWCCA 8 at [22]-[23]; Qualtieri v R
(2006) 171 A Crim R 463; 485 at [74]; R v AH (1997) 42 NSWLR 702 at 708-709. CF
Hodgson JA in Leonard v R (2006) 67 NSWLR 545, 557 at [49]-[52].
41
JLS v R [2010] VSCA 209. It is to be noted that in JLS the VSCA refused to follow the
obiter dicta of Howie J in the NSWCCA matter of Qualtieri v R (2006) 171 A Crim R 463,
494-495 in which His Honour doubted whether such evidence could meet the high thresholds
set out in s.97 & 101. See also DJV v R [2008] NSWCCA 272 at [14].
33. Tendency and Coincidence Evidence [2014-07-24]
10
evidence and/or relationship/context evidence is a matter which is
to be determined on a case-by-case basis. [refer more particularly
to paragraphs 21.32-21.37].
21.12
Relationship/context evidence - Evidence which goes to relationship
or context only that does not display a guilty passion or sexual
interest, is not tendency evidence. [refer to paragraphs 21.32-21.37
below in relation to context/relationship evidence].
21.13
Examples of non-tendency reasoning –

For detailed examples of evidence being used for a non-tendency
purpose refer to Odgers at [1.3.6740], p.431 and [1.3.7320],
p.455-469.

It should be noted, however, that it is not appropriate to seek to
justify admission of evidence on the basis that it is not tendency
or coincidence evidence (and therefore does not fall within the
exclusionary rule) when the evidence is really intended to be used
for such a purpose.42
Significant probative value (s.97(1)(b))
21.14
21.15
Definition –

“Probative value” is defined in the UEA dictionary as “the extent
to which the evidence could rationally affect the assessment of the
probability of a fact in issue”. The authorities are unsettled in
relation to whether this test requires the trial judge to approach the
task as a “predictive and evaluative exercise” about how the jury
would view the evidence or whether the trial judge makes his or
her own assessment. Reference should be had to Odgers at
[1.3.6680], p.425-426 and the JCV Uniform Evidence Manual43
for further analysis in relation to this issue.

Significant probative value - The term “significant” is not defined.
It has been held that to have “significant” probative value, the
evidence (considered separately or jointly) must be more than
merely relevant, it must be “important” or “of consequence”44 but
need not be of “substantial” probative value.45
Assessing the strength of a tendency- In assessing the strength of the
tendency evidence consideration should be given to the following
factors as noted in Odgers [at 1.3.6680], p.427:
42
Refer, for example, Odgers at [1.3.7260], p.452, citing R v Adam (1999) 106 A Crim R 510
at [31] and ALRC 102 at [11.93].
43
http://www.justice.vic.gov.au/emanuals/UniformEvidenceManual/default.htm
44
R v Lockyer (1996) 89 A Crim R 457 at 459.
45
Ibid. Refer also to the Explanatory Memorandum to the Evidence Bill 2008 in relation to
s.97 (p.32).
33. Tendency and Coincidence Evidence [2014-07-24]
11
(a) the number of occasions of particular conduct relied upon;
(b) the time gaps between them;
(c) the degree of specificity of the conduct/alleged tendency;
(d) the degree of similarity between the conduct on the various
occasions;
(e) the degree of similarity of the circumstances in which the conduct
took place, (particularly if it is possible to establish a pattern of
behaviour, or even a modus operandi, in those circumstances);
(f) whether the tendency is disputed;
(g) whether the evidence is adduced to explain or contradict tendency
evidence adduced by a party.
21.16
21.17
Approach in determining significant probative value –

“There is no single criterion for determining whether the asserted
similarities are sufficient to render the evidence of ‘significant
probative value’”.46

Significant probative value can be established through various
ways (eg, pattern of conduct or modus operandi or underlying
unity etc).47
Whether the reliability to be assumed when determining significant
probative value- Whether the reliability of the evidence is to be
assumed when assessing “significant probative value” is one of the
threshold issues under the UEA. This issue has been the subject of
differing views both within, and between, the UEA jurisdictions. It
has particular relevance in relation to multi-complainant sex matters
in the context of the possibility of the “contamination”48 of the
witness’ evidence. The following represents the current position in
both Victoria and NSW in this regard –
(i)
For the purpose of determining the probative value of evidence
pursuant to ss.97(1)(b), 98(1)(b), 101(2), 135 & 137, the trial
46
PNJ v DPP [2010] VSCA 88 at [12].
In relation to tendency evidence refer to the VSCA decision in PG v R [2010] VSCA 289 at
[69]-[71]; KRI v R [2011] VSCA 127 at [58]; and the NSWCCA decision of R v Ford (2009)
273 ALR 286 at [38-45] citing various authorities including R v Cittadini (2008) 189 A Crim R
492; R v Harker [2004] NSWCCA 427 at [57]; R v Li [2003] NSWCCA 407; R v Fletcher
(2005) 156 A Crim R 308; R v Smith (2008) 190 A Crim R 8. In relation to coincidence
evidence refer to the VSCA decision in GBF v R [2010] VSCA 135 at [27] and KRI v R [2011]
VSCA 127 at [58].
48
In PNJ v DPP [2010] VSCA 88 at [24] the court referred to “contamination” as including
“concoction” and “innocent infection”.
47
33. Tendency and Coincidence Evidence [2014-07-24]
12
judge assumes that the evidence will be accepted by the jury,
unless no reasonable jury could accept it.49
(ii)
The trial judge has to consider whether, on the material before
the Court, there is a reasonable possibility of contamination.50
(Cf s398A(3) Crimes Act 1958, now repealed).51 It is to be
noted that there has to be a “real chance”, rather than a
“speculative” chance of concoction.52 The onus is on the Crown
to negate this “real chance”.53 Reference may be had to
decisions of the NSWCCA in AE54 and BP55 and the VSCA in
KRI56 for examples of recent cases involving the issue of
“contamination”. It is the Director’s Policy that there should be
a legitimate forensic basis to support the conduct of a voir dire
to determine whether there is a reasonable possibility of
contamination. In matters involving child or cognitively
impaired complainants it is preferable that the issue of
“contamination” be explored during the Special Hearing to
avoid such complainants having to give evidence twice (at the
Special Hearing and again at voir dire). Counsel appearing on
behalf of the Director must ensure that such applications are not
used merely as a “fishing expedition”. However, it is clear from
the authorities that the exploration of this “possibility” is open
to an accused and this should not be unfairly circumvented.
(iii) It is to be noted that the basis upon which “contamination” can
be taken into account in light of the established principles is
unclear –
49
R v Shamouil [2006] NSWCCA 112, [63] –[64]; R v Mundine (2008) 182 A Crim R 302
[33]; R v Ford (2009) 273 ALR 286 at [46] – [49]; R v PWD [2010] NSWCCA 209 at [57];
NAM v R [2010] VSCA 95 at [23]; JLS v R [2010] VSCA 88 at [18] & [26], PG v R [2010]
VSCA 289 at [62]; KRI v R [2011] VSCA at [27]-[31] & [53]-[55].
50
The authorities have taken the reasonable possibility of “contamination” into account at both
stages of the test - when determining significant probative value pursuant to ss.97(1)(b),
98(1)(b) and pursuant to s.101(2) when determining whether the probative value evidence of
the evidence substantially outweighs the prejudicial effect. In relation to ss.97(1)(b) &
98(1)(b) refer to R v Colby [1999] NSWCCA 261 at [107]; BP v R; R v BP [2010] NSWCCA
303 at [110] & ff; PNJ v DPP [2010] VSCA 88 at [24]-[28]. In relation to s.101(2) refer to R v
OGD (No.2) (2000) 50 NSWLR 433; R v F (2002) 129 A Crim R 126; AE v R [2008]
NSWCCA 52 at [44].
51
It is to be noted that the issue of “contamination” was considered in ALRC 102 at paragraphs
11.52-11.75 and by the Tasmania Law Reform Institute, Issues Paper No. 15, “Evidence Act
2001, Sections 97, 98 & 101 and Hoch’s case: Admissibility of Tendency and Coincidence
Evidence in Sexual Assault Cases with Multiple complainants” issued September 2009. As at
the time of writing it appears as though the final report has not been published.
52
R v Colby [1999] NSWCCA 261 at [111]; R v OGD (no 2) (2000) 50 NSWLR 533 at [74],
[112]; BP v R; R v BP [2010] NSWCCA 303 at [110] & ff.
53
R v OGD (no 2) (2000) 50 NSWLR 533 at [74]; R v F (2002) 129 A Crim R 126 at [48]; BP
v R; R v BP [2010] NSWCCA 303 at [110] & ff.
54
AE v R [2008] NSWCCA 52
55
BP v R; R v BP [2010] NSWCCA 303 at [110] – [126].
56
KRI v R [2011] VSCA 127.
33. Tendency and Coincidence Evidence [2014-07-24]
13

It is clear from the authorities that the trial judge is to
assume the reliability of the evidence unless no reasonable
jury could accept it.

It is also clear since the NSWCCA decision in Ellis57 that, in
applying the exclusionary rule within s.101(2) of the UEA,
the common law “another rational explanation consistent
with innocence” test established in Pfennig58 is not “the”
test under the UEA.

However, the authorities do not explain how
“contamination” is relevant when assessing significant
probative value in light of the above principles. It may be
that the reasonable possibility of contamination falls within
either the exception that “no reasonable jury could accept it”
or within the “qualification” by Spigelman CJ in Ellis59 that
although the “no rational explanation” test is not “the” test,
there may be cases in which it may still need to be met in
order to have significant probative value.

Consequently, although the authorities60 make it is clear that
“contamination” is relevant when determining whether
evidence has “significant probative value” in ss.97(1)(b),
98(1)(b) or s.101(2), the basis upon which it is premised is
not clearly set out in those authorities.61
21.18
Specificity – “As a general rule, the greater the degree of specificity
with which the similarities can be identified, the more likely it is that
the evidence will be probative of a tendency to act in a distinctive
way or to do acts of a distinctive kind”.62 However, it may be that
this is not a “statement of admissibility”, but rather, the generality of
the tendency is a factor, which in some cases tends against the
evidence having significant probative value”.63
21.19
Degree of similarities– The authorities relating to the level of
similarities that are required for the evidence to have significant
probative value appear to be difficult to reconcile. However, the
following may assist –
57
R v Ellis (2003) 58 NSWLR 700 at [89] & ff.
Pfennig v R (1995) 182 CLR 461.
59
R v Ellis (2003) 58 NSWLR 700 at [96].
60
See, for example, AE v R [2008] NSWCCA 52; PNJ v DPP [2010] VSCA 88; BP v R; R v
BP [2010] NSWCCA 303.
61
For further analysis in relation to this issue refer to Odgers at [1.3.7340], [1.3.7345],
[1.3.7350], p.469-485.
62
See for example, CGL v DPP (2010) VR 486 at [40]; R v Ford (2009) 273 ALR 286, [53]
per Campbell JA; Townsend v Townsend [2001] NSWCA 136 at [78] per Giles JA; Ibrahim v
Pham [2007] NSWCA 214, [264] per Campbell JA.
63
R v PWD [2010] NSWCCA 209 at [67] – [69].
58
33. Tendency and Coincidence Evidence [2014-07-24]
14

Fact in issue - It is important to identify the fact in issue as the
“question of probative value (and also the possibility of
prejudicial effect) must be assessed having regard to the issues
in the case”.64 In this regard, it may be that a greater degree of
similarities are required where the fact in issue is the identity
of an accused.65

Importance of similarities - In determining whether evidence
has “significant probative value” the degree of similarities
between the evidence is an important factor.66

The evidence must possess sufficient common or similar
features with the conduct in the charge in issue so as to
demonstrate a pattern that cogently increases the likelihood of
the occurrence of that conduct.67 There is no need for proof of
‘striking similarities’, but there must be far more than ‘mere
relevance.’ It should be considered whether the features of the
acts reveal ‘underlying unity,’ a ‘pattern of conduct,’ ‘modus
operandi,’ or ‘such similarity as logically and cogently
implies that the particular features of those previous acts
renders the occurrence of the act to be proved more likely.’68

Commonality of relationship between offender and victim
alone will not ordinarily be sufficient to support tendency
reasoning. To establish tendency the commonality of
relationship must be accompanied by some degree of
similarity or commonality in either the nature of the conduct
or in the surrounding circumstances or in a combination of
both.69

It was noted by the NSWCCA in PWD,70 that the level of
similarities may be more important in relation to coincidence
reasoning than tendency reasoning as s.98 is based (by
definition) on similarities. This distinction has not yet been
adopted (or rejected) by the VSCA.

NSW - It has been noted by the NSWCCA71 that it is not
necessary that the incidents relied on as evidence of the
tendency be closely similar to the circumstances of the alleged
64
R v PWD [2010] NSWCCA 209 at [66]; cited with approval in BP v R; R v BP [2010]
NSWCCA 303 at [107].
65
BP v R; R v BP [2010] NSWCCA 303 at [113]; refer also to R v PWD [2010] NSWCCA 209
at [82].
66
Odgers at [1.3.6680]; CGL v DPP (2010) VR 486 at [21]; PNJ v DPP [2010] VSCA 88 at
[8].
67
DPP v Velkoski [2014] VSCA 121 [3].
68
Velkoski v The Queen [2014] VSCA 121 [171].
69
Velkoski v The Queen [2014] VSCA 121 [168].
70
R v PWD [2010] NSWCCA 209 at [79].
71
BP v R; R v BP [2010] NSWCCA 303 at [108]; citing R v Ford (2009) 273 ALR 286 at [38],
[125] and R v PWD [2010] NSWCCA 209 at [64]-[65].
33. Tendency and Coincidence Evidence [2014-07-24]
15
offence, or that the tendency be a tendency to act in a way (or
have a state of mind) that is closely similar to the act or state
of mind alleged against the accused; or that there be a striking
pattern of similarities between the incidents relied on and what
is alleged against the accused. But that, generally, the closer
and more particular the similarities, the more likely it is that
the evidence will have significant probative value. Note the
view expressed by the Court of Appeal in Velkoski that the
approach in NSW ‘goes too far in lowering the threshold to
admissibility’ and that the law regarding tendency and
coincidence evidence appears to have developed along a
divergent path in Victoria.72

21.20
Victoria - It appeared from the earlier VSCA decisions73 that a
higher degree of similarities (namely that the evidence need
have distinctive or remarkable features) was required in
comparison with decisions of the NSWCCA. However, it
must be borne in mind that each case has to be determined on
its own facts74 and caution must therefore be exercised in
equating “passages” contained within judgments to
“statements of principles”.75 In this regard, it may be that
references in some earlier VSCA decisions76 to “distinctive”
or “remarkable” features were not statements of principles or
pre-requisites to admissibility but were confined to the facts of
those cases. Indeed, subsequent VSCA decisions77 seem to
suggest that significant probative value can be established
through a pattern of behaviour, underlying unity or modus
operandi without having to necessarily find distinctive or
remarkable similarities.
“Relevant” similarities – It is clear that the similarities which are
sought to be relied upon must be more than simply the setting and/or
the actus reus of the offences.78 However, the similarities can arise
from the taking advantage of a setting in a particular way which
demonstrates a pattern of behaviour, modus operandi or underlying
unity.79 Further, the conduct need not be identical, as the similarities
72
Velkoski v The Queen [2014] VSCA 121 [164] - [165].
CGL v DPP (2010) VR 486; PNJ v DPP [2010] VSCA 88.
74
KRI v R [2011] VSCA 127 at [58]; see also the comments of the court in the recent non-UEA
decision in MRO v R [2010] VSCA 240 at [55] pointing out that cross-admissibility is
determined on the facts in each particular matter, noting that little assistance can be obtained
from other decisions in different factual circumstances. This reasoning would also apply
equally to cross-admissibility under the UEA.
75
See for example, the comments of the court in GBF v R [2010] VSCA 35, [28]-[29].
76
CGL v DPP (2010) VR 486 at [31], citing AE v R [2008] NSWCCA 52 at [42]; PNJ v DPP
[2010] VSCA 88 at [17] –[ 22].
77
NAM v R [2010] VSCA 95 at [27]; GBF v R [2010] VSCA 135 at [27], PG v R [2010] VSCA
289 at [68] – [71]; KRI v R [2011] VSCA 127 at [57] – [58].
78
CGL v DPP (2010) VR 486 at [31], citing AE v R [2008] NSWCCA 52 at [42]; PNJ v DPP
[2010] VSCA 88 at [17-22, particularly at 19-20]; NAM v R [2010] VSCA 95 at [8].
79
PG v R [2010] VSCA 289 at [68] – [72]; KRI v R [2011] VSCA 127 at [57] – [58].
73
33. Tendency and Coincidence Evidence [2014-07-24]
16
of the surrounding circumstances can be taken into account when
assessing whether the evidence has “significant probative value”.80
Coincidence Evidence
The Rule
21.21
Definition - “Coincidence evidence” is defined in the Dictionary and
s.98 of the UEA. The term, for practical purposes, could be defined
as evidence of two or more events adduced to prove that the accused
thought or acted in a particular way and which, by reason of the
similarities in the events, make it improbable that those events were
mere coincidence. The reasoning process is often called “coincidence
reasoning” or “probability reasoning.”
21.22
Elements - The elements of the coincidence rule in s.98 are as
follows:

the evidence consists of 2 or more events – s.98(1);

the purpose (or use) of the evidence must be to prove that the
person did a particular act or had a particular state of mind s.98(1);

having regard to the similarities in the events and/or
circumstances in which they occurred it was improbable that the
events occurred coincidentally - s.98(1);

reasonable written notice must be given – s.98(1)(a);

the evidence has significant probative value (either by itself or
having regard to other evidence to be adduced) - s.98(1)(b).

NB1 – If evidence is admitted for another purpose, it cannot be
used for a tendency purpose unless the conditions set out in ss.97
and 101 are met -s.95.

NB2 - A reference to “doing an act” includes a reference to
“failing to do that act” - s.96.
Purpose/use
21.23
Coincidence reasoning - Evidence can be relevant and admissible on
several bases. Coincidence evidence is led to prove that accused X
committed “Crime A” and also committed “Crime B” on the basis
that it is improbable that the crimes were committed by different
persons. Coincidence evidence is likely to be used where there is
more than one complainant in a sex matter as relevant to the
80
R v Smith (2008) 190 A Crim R 8 at [17]; NAM v R [2010] VSCA 95, [14-15] endorsing the
pre-UEA approach established in R v Papamitrou (2004) 7 VR 375.
33. Tendency and Coincidence Evidence [2014-07-24]
17
credibility of each, in that it is objectively improbable that similar
allegations would be made independently by such witnesses unless
they were true. It can also be used in non-sex matters, for example,
involving the commission of 2 or more offences (eg, several armed
robberies, burglaries or arsons) to establish identification.81
21.24
Non-coincidence reasoning - It is possible that evidence which is not
admissible as coincidence evidence may nonetheless be relevant and
admissible for another purpose. For examples of such evidence refer
to Odgers at [1.3.6980], p.445-456 and [1.3.7320], p.455-469. It
should be noted, however, that it is not appropriate to seek to justify
admission of evidence on the basis that it is not tendency or
coincidence evidence (and therefore does not fall within the
exclusionary rule) when the evidence is really intended to be used for
such a purpose.82
21.25
Use as tendency and coincidence evidence - It is possible to lead
evidence for both tendency and coincidence purposes.83 The type of
inferential reasoning differs according to the purpose intended. For
example, in matters involving alleged sexual offending against
multiple complainants it is the evidence of the alleged acts which
form the basis of the tendency reasoning. However, coincidence
reasoning involves the use of the evidence of the complaints of the
alleged offending which are led to demonstrate the improbability of
several complainants making the same false complaint.84 It is the
Director’s Policy that, consistent with the NSW practice, OPP staff
should seek to lead evidence for both tendency and coincidence
purposes unless the reasoning process that is open clearly only falls
within one of these categories.85 It is then a matter for counsel
appearing on behalf of the Crown to determine whether the evidence
should be sought to be used for both purposes (tendency and
coincidence) or only one (if any) of these purposes, prior to
determination by the trial judge.
21.26
Examples - Examples of coincidence, or improbability, reasoning
include-86
81
See for example, R v Ellis (2003) 58 NSWLR 700; CW v R [2010] VSCA 288.
Refer, for example, Odgers at [1.3.7260], p.452, citing R v Adam (1999) 106 A Crim R 510
at [31] and ALRC 102 at [11.93].
83
CGL v DPP (2010) VR 486 at [37] citing R v Fletcher (2005) 156 A Crim R 308; R v Smith
(2008) 190 A Crim R 8.
84
See, for example, PNJ v DPP [2010] VSCA 88 at [11]. When discussing the reasoning
process involved with coincidence evidence, the Court endorsed the approach stated in Hoch
that the probative value of the evidence lies in the improbability of the witnesses giving
accounts of happenings having the requisite degree of similarity unless the happenings
occurred (emphasis added); see also CGL v DPP (2010) VR 486 at [23] and [37].
85
See also R v Ellis (2003) 58 NSWLR 700 as an example of the prosecution seeking to lead
evidence for both tendency and coincidence purposes involving numerous burglaries where the
fact in issue was identification.
86
Refer to Odgers at [1.3.6880], p.439 for further examples.
82
33. Tendency and Coincidence Evidence [2014-07-24]
18

Similarities in the accounts of two or more witnesses regarding
the conduct of the accused may make it improbable that the
witnesses are telling lies, in the absence of joint concoction or
contamination (while the evidence is relevant to the credibility of
the witnesses, it is not "relevant only because it relates to the
credibility of a witness": s.94(1)).87

Similarities in a number of thefts alleged to have been committed
by an accused using a particular unusual technique to remove a
shop window without breaking it.88

In circumstances where three business premises were burnt within
4 hours of each other, the improbability of the fires being lit by
someone other than the accused who had been in dispute with all
three businesses.89
Significant probative value (s.98(1)(b)) 21.27
Coincidence evidence - questions to ask - In CGL90the VSCA held
that in determining whether it is permissible to lead evidence for a
coincidence purpose the following questions must be addressed:
1. Are the similarities in the specified events and/or in the
circumstances in which they occurred such that it is improbable
that the events occurred coincidentally?91
2. If so, would the evidence of those events and circumstances tend
to prove that the accused:
(a) did the specified act; or
(b) had the specified state of mind
where doing that act or having that state of mind is a fact in issue
or is relevant to a fact in issue?
3. If so, does the evidence have significant probative value, either by
itself or having regard to other evidence adduced or ought to be
adduced by the prosecution?
4. If so, does the probative value of the evidence substantially
outweigh any prejudicial effect it may have on the accused?
87
For further discussion in relation to this example refer to Odgers at [1.3.6920], [1.3.7300],
[1.3.7350].
88
R v Ellis (2003) 58 NSWLR 700.
89
CW v R [2010] VSCA 288.
90
CGL v DPP (2010) VR 486 at [22].
91
It should be noted that Odgers argues at [1.3.6880], p.440, that the formulation set out in
CGL in question 1 “somewhat misstates the requirements of this provision” as “it is not a
requirement of admissibility that the court be satisfied that it is improbable that the events
occurred coincidentally”.
33. Tendency and Coincidence Evidence [2014-07-24]
19
21.28
21.29
Similarities - questions to ask - In NAM92 the VSCA held that there
are three questions to ask when assessing the similarity of evidence.
However, as noted at paragraph 21.19, the reference to “distinctive”
in NAM has to be read in light of subsequent VSCA decisions93 which
have determined that evidence can have significant probative value
without necessarily having “distinctive or remarkable features”.
Odgers at [1.3.7340] also notes that there is no requirement for
distinctive conduct in relation to either tendency or coincidence
evidence but that, although not determinative, in relation to
coincidence evidence it will be much more probative if the
similarities are striking. The questions posed in NAM are as follows “Is there anything distinctive and recurrent about the evidence to be
given concerning:

the actual offending;

the surrounding circumstances; and/or

(this may just be a variant on the second) the way in which the
accused is said to have taken advantage of the setting in which
he and the victims found themselves”?
Relevant factors - Odgers notes at [1.3.6920], p.441, that the identical
requirement of “significant probative value” applies to both tendency
evidence (s.97(1)(b)) and coincidence evidence (s.98(1)(b)) and adds
that there does not appear to be any justification for differing
interpretations to be adopted. However, it was noted by the
NSWCCA in PWD,94 that the level of similarities may be more
important in relation to coincidence reasoning than tendency
reasoning as s.98 is based (by definition) on similarities. This
distinction has not yet been adopted (or rejected) by the VSCA. As
such, reference should be had to paragraphs 21.14-21.20 above in
relation to the factors to be taken into account in determining whether
evidence meets the requisite test of significant probative value as
required by s.98(1)(b) UEA.
Whether the probative value substantially outweighs the prejudicial effect
21.30
The test - Section 101 of the UEA imposes an additional requirement
on the prosecution when determining the admissibility of tendency or
coincidence evidence. Pursuant to s.101(2), the court must be
satisfied on the balance of probabilities (s.142) that the probative
value of the evidence adduced by the prosecution substantially
outweighs any prejudicial effect it may have on the accused.
92
NAM v R [2010] VSCA 95 at [10].
NAM v R [2010] VSCA 95 at [27]; GBF v R [2010] VSCA 135 at [27], PG v R [2010] VSCA
289 at [68] – [71]; KRI v R [2011] VSCA 127 at [57] – [58].
94
R v PWD [2010] NSWCCA 209 at [79].
93
33. Tendency and Coincidence Evidence [2014-07-24]
20
21.31
The principles - The following principles should be noted in relation
to this provision (a)
(Unfair) prejudice - Although s.101 does not refer to “unfair
prejudice” (cf, s.137) it is considered that the concept should be
understood in substantially the same way as the term unfair
prejudice in s.137, albeit with an emphasis on the way that the
evidence may, rather than necessarily will, impact adversely on
an accused.95 It is to be noted, however, that s.101 requires that
the probative value of the evidence “substantially” outweighs
the prejudicial effect (cf s.137).
(b)
Background – unfair prejudice - In its Interim Report, the
Australian Law Reform Commission stated the following96 "By risk of unfair prejudice is meant the danger that the factfinder may use the evidence to make a decision on an improper,
perhaps emotional, basis, ie on a basis logically unconnected
with the issues in the case. Thus evidence that appeals to the
fact-finder's sympathies, arouses a sense of horror, provokes an
instinct to punish, or triggers other mainsprings of human action
may cause the fact-finder to base his decision on something
other than the established propositions in the case. Similarly, on
hearing the evidence the fact-finder may be satisfied with a
lower degree of probability than would otherwise be required."
(c)
Requirements– unfair prejudice –

The danger of unfair prejudice requires more than the
spectre that the evidence will tend towards proof of the
Crown case.97

Similarly, evidence is not unfairly prejudicial merely
because it makes it more likely that the accused will be
convicted.98

The possibility of prejudicial effect with which s.101 is
concerned is the possibility that the jury will act on the
evidence otherwise than by way of its rational effect on the
probability of a fact in issue, for example by giving effect to
“some irrational, emotional or illogical response” or “giving
the evidence more weight than it truly deserves”.99
95
Odgers at [1.3.7340] citing R v Ford (2009) 273 ALR 286 at [55] & R v Jennings [2010]
NSWCCA 193 at [21].
96
“Evidence”, Australian Law Reform Commission Interim Report, ALRC 26 1985 at [644].
97
R v Sood [2007] NSWCCA 214 at [43] per Latham J.
98
Papakosmas v R (1999) 196 CLR 297 per McHugh J at [91-92].
99
R v Suteski (2002) 56 NSWLR 182 at [116]; cited with approval in BP v R; R v BP [2010]
NSWCCA 303 at [109].
33. Tendency and Coincidence Evidence [2014-07-24]
21
(d)
Application of the test in s.101(2) – In considering the operation
of s.101(2), a court of 5 in the NSWCCA decision in Ellis100
stated the requirements of the test as set out below. Reference
may also be had to the recent NSWCCA decision in PWD101 in
regard to the application of the test. In Ellis the Court noted that

Section 101(2) calls for a balancing exercise which can only
be conducted on the facts of each case (at [95]);

The Court must give consideration to the actual prejudice in
the specific case which the probative value of the evidence
must substantially outweigh (at [94]).
(e)
Relevance of ability to cure prejudice by directions - It is
appropriate to consider the extent to which the danger of
prejudice associated with admitting evidence may be reduced by
some other action (eg, editing the evidence or jury direction).102
(f)
Evidence which may be “contaminated”103 - Although it was
held by the majority in Ellis104 that the Pfennig105 test was not
“the” test for s.101,106 it is now clear that the possibility of
“contamination” is relevant when assessing probative value.107
It is to be noted that the authorities have taken the reasonable
possibility of “contamination” into account at both stages of the
test - when determining significant probative value pursuant to
ss.97(1)(b), 98(1)(b) and pursuant to s.101(2) when determining
whether the probative value evidence of the evidence
substantially outweighs the prejudicial effect.108
100
R v Ellis (2003) 58 NSWLR 700.
R v PWD [2010] NSWCCA 209 at [71] –[73] citing various authorities.
102
R v GAC (2007) 178 A Crim R 408 at [87], [89]; Samadi and Djait v R [2008] NSWCCA
330 at [102], [172]-[173]; CW v R [2010] VSCA 288 at [30].
103
In PNJ v DPP [2010] VSCA 88 at [24] the court referred to “contamination” as including
“concoction” and “innocent infection”.
104
R v Ellis (2003) 58 NSWLR 700.
105
Pfennig v R (1995) 182 CLR 461.
106
It is to be noted, however, that Chief Justice Spigelman added the following comment at
[96] (the other members of the Court agreeing with the judgment of the Chief Justice, with
Hidden and Buddin JJ adding some further comments) – “My conclusion in relation to the
construction of s.101(2) should not be understood to suggest that the stringency of the
approach, culminating in the Pfennig test, is never appropriate when the judgment for which
the section calls has to be made. There may well be cases where, on the facts, it would not be
open to conclude that the probative value of particular evidence substantially outweighs its
prejudicial effect, unless the “no rational explanation” test were satisfied”.
107
AE v R [2008] NSWCCA 52; PNJ v DPP [2010] VSCA 88 at [28]; BP v R; R v BP [2010]
NSWCCA 303 at [110] & ff. Refer to paragraph 21.17 of this policy for more detailed
discussion relating to this issue.
108
In relation to ss.97(1)(b) & 98(1)(b) refer to R v Colby [1999] NSWCCA 261 at [107]; BP v
R; R v BP [2010] NSWCCA 303 at [110] & ff; PNJ v DPP [2010] VSCA 88 at [24]-[28]. In
relation to s.101(2) refer to R v OGD (No.2) (2000) 50 NSWLR 433; R v F (2002) 129 A Crim
R 126; AE v R [2008] NSWCCA 52 at [44].
101
33. Tendency and Coincidence Evidence [2014-07-24]
22
(g)
S.137 discretion- If tendency or coincidence evidence is
admitted under s.101, there is no basis to exclude it under
s.137.109 However, s.137 continues to apply to evidence which
is not used for a tendency or coincidence purpose.
(h)
S.194 CPA – presumption of joint trial in sex offences- Section
194(2) of the CPA creates a rebuttable presumption of a joint
trial involving two or more sexual offences. Even though the
presumption is not rebutted merely because evidence on one
charge is inadmissible on another charge (s.194(3)) there are
circumstances in which a separate trial may nonetheless be
ordered. In GBF110 there were two complainants and various
charged and uncharged acts contained within the one
indictment. The VSCA held that some acts were crossadmissible as tendency and coincidence evidence but that others
were not. The court found that a jury would not be able to
understand the complicated directions which would be required,
the understanding of such directions being described as
“bordering on the metaphysical”, and severed the indictment.
This resulted in separate trials for each complainant on the basis
that the risk of prejudice was unacceptable if a joint trial were to
be conducted.111 As such, if evidence is not cross-admissible or
is held to be cross-admissible only in part pursuant to ss97, 98
and 101, consideration must still turn to s.194 of the CPA and
the authorities thereto. This is consistent with the approach
taken in relation to the predecessor provisions.112
Uncharged Acts as Context or Relationship Evidence
21.32
Application - “Uncharged acts” are acts by the accused which do not
form part of the alleged offence(s) on the indictment. The online JCV
Criminal Charge Book113 helpfully sets out the following –

“Context Evidence” is evidence that provides essential
background information that allows the jury to assess and evaluate
the other evidence in the case in a true and realistic context.114

The common law principles relating to the admissibility of
context evidence continue to apply.115

“Relationship Evidence” is evidence which demonstrates the
nature of a relationship between two relevant people in a case.116
109
AE v R [2008] NSWCCA 52 at [41]; R v Ford (2009) 273 ALR 286 at [59].
GBF v R [2010] VSCA 135.
111
Ibid at [51] – [55].
112
Sections 372(3AA) & 372 (3AB) Crimes Act 1958. See, for example, R v TJB [1998] 4 VR
621, 630-631.
113
http://www.justice.vic.gov.au/emanuals/CrimChargeBook/default.htm ; refer in particular to
Chapters 4.16.6 and 4.16.8.
114
See, e.g., R v AH (1997) 42 NSWLR 702.
115
Qualtieri v R (2006) 171 A Crim R 463; R v AH (1997) 42 NSWLR 702.
110
33. Tendency and Coincidence Evidence [2014-07-24]
23

“Relationship evidence” must be distinguished from “context
evidence”. Unlike relationship evidence, context evidence merely
helps the jury to understand evidence that may otherwise appear
disjointed or implausible. Context evidence is not otherwise
probative of the accused’s guilt.117
21.33
Relevance - “Context or Relationship” evidence must pass the test of
relevance.” If the evidence assists in the evaluation of other evidence
bearing directly on an ultimate fact in issue, it can be relevant.118
21.34
Use/purpose - It appears from the authorities that evidence of
uncharged acts relied upon merely to give “context” to the evidence
of the charged acts is not tendency or coincidence evidence. If the
evidence is led as “context” or “relationship” evidence only, the jury
must be told that they cannot use that type of evidence as tendency
evidence.119 However, as is noted by Odgers at [1.3.7320], p.455456, care must be taken in this regard – it is not sufficient to simply
assert that such evidence is relied upon to show the “surrounding
circumstances” or “background” to the alleged offence without a clear
articulation of the precise way in which the evidence is relevant.
21.35
Reasoning process - The fact that evidence of “uncharged acts”
suggests that the accused is a criminal or person of bad character does
not make it tendency or coincidence evidence, notwithstanding a risk
that the jury might engage in impermissible propensity reasoning (eg
the accused is a criminal and therefore must have committed the
alleged offence). However, ss.135 and 137 UEA will still have to be
negotiated. Further, it is not appropriate to seek to justify admission
of evidence on the basis that it is not tendency or coincidence
evidence (and therefore does not fall within the exclusionary rule)
when the evidence is really intended to be used for such a purpose.120
21.36
Examples - If, for example, the evidence is tendered merely to
provide context to the charges which have been issued, it is first
necessary to consider whether any issue has been raised in the trial
which makes that evidence relevant.121 In relation to crimes of a
sexual nature, particularly involving children, it may be anticipated
that lack of complaint or surprise by the complainant may be an issue
at the trial. The online NSW Bench Book 122 at [5-1600] gives the
following examples:
“In a child sexual assault case this could include the following:
why did the complainant not rebuff the accused? Why was the
116
See, e.g., Atroushi v R [2001] NSWCCA 406; R v AN (2000) 117 A Crim R 176.
See, e.g., R v AH (1997) 42 NSWLR 702; R v Sadler [2008] VSCA 198.
118
See, e.g., DJV v R [2008] NSWCCA 272 at [28].
119
Refer also to paragraph 21.57 of this policy in relation to Judicial Directions.
120
Refer, for example, Odgers at [1.3.7260], p.452, citing R v Adam (1999) 106 A Crim R 510
at [31] and ALRC 102 at [11.93].
121
R v ATM [2000] NSWCCA 475 at [72].
122
http://www.judcom.nsw.gov.au/bench-books
117
33. Tendency and Coincidence Evidence [2014-07-24]
24
complainant compliant? Why was there no complaint or surprise
on the part of the complainant? Or would the act constituting the
charge appear to be astonishing, and almost unbelievable, if the
jury [is] not made aware of the existing sexual relationship
between the adult accused and the child complainant removing
implausibility that might otherwise be attributed to the
complainant’s account of the assaults charged if [the] assaults
were thought to be isolated incidents.”
21.37
S.137 discretion - It is important to emphasise that if uncharged acts
are relevant as context evidence, the exclusionary rules in ss.97 and
98 are not engaged, but ss.135 and 137 must be negotiated. Section
137, an exclusionary rule rather than a discretion, contains a higher
threshold for admissibility of evidence led by the prosecution than
s.135 and is therefore more likely to be relied upon by an Accused.
Evidence of Guilty Passion or Sexual Interest as Tendency Evidence
21.38
21.39
Although there had previously been some differing authorities, it is
the Director’s Policy that –

Consistent with the preponderance of authority, evidence of guilty
passion is to be considered as “tendency evidence” as defined in
s.97 of the UEA.123

Consistent with the decision of the VSCA in JLS,124 it is open to
use evidence of uncharged acts from a complainant for a tendency
purpose in matters involving a single complainant.
Uncharged acts as relationship/context evidence - It is also possible to
lead these uncharged acts as relationship or context evidence.
Whether uncharged acts are led as tendency evidence and/or
relationship/context evidence is a matter which is to be determined on
a case-by-case basis. [refer more particularly to paragraphs 21.3221.37].
Notice Requirements
The Rule
21.40
The Crown must give reasonable notice in writing of reliance on the
evidence for a tendency or coincidence purpose (ss.97(1)(a) and
98(1)(a)). It is the Director’s Policy that OPP solicitors are
123
JLS v R [2010] VSCA 209; R v Greenham [1999] NSWCCA 8 at [22]-[23]; Qualtieri v R
(2006) 171 A Crim R 463; 485 at [74]; R v AH (1997) 42 NSWLR 702 at 708-709. CF
Hodgson JA in Leonard v R (2006) 67 NSWLR 545, 557 at [49]-[52].
124
JLS v R [2010] VSCA 209. It is to be noted that in JLS the VSCA refused to follow the
obiter dicta of Howie J in the NSWCCA matter of Qualtieri v R (2006) 171 A Crim R 463,
494-495 in which His Honour doubted whether such evidence could meet the high thresholds
set out in s.97 & 101. See also DJV v R [2008] NSWCCA 272 at [14].
33. Tendency and Coincidence Evidence [2014-07-24]
25
responsible for drafting UEA notices which must be settled by
counsel appearing on behalf of the Crown.
Purpose/use
21.41
It is possible to lead evidence for both tendency and coincidence
purposes.125 The type of inferential reasoning differs according to the
purpose intended. For example, in matters involving alleged sexual
offending against multiple complainants it is the evidence of the
alleged acts which form the basis of the tendency reasoning.
However, coincidence reasoning involves the use of the evidence of
the complaints of the alleged offending which are led to demonstrate
the improbability of several complainants making the same false
complaint.126 It is the Director’s Policy that, consistent with the NSW
practice, OPP staff should seek to lead evidence for both tendency
and coincidence purposes unless the reasoning process that is open
clearly only falls within one of these categories.127 It is then a matter
for counsel appearing on behalf of the Crown to determine whether
the evidence should be sought to be used for both purposes (tendency
and coincidence) or only one (if any) of these purposes, prior to
determination by the trial judge.
Reasonable notice
21.42
Definition – The statutory requirements are that “reasonable notice”
in writing be given, but there is no statutory definition of what
constitutes “reasonable notice”. What is reasonable must depend on
all the circumstances. However, the County Court and Supreme
Court have issued Practice Notes in this regard. As such, the
following represents the requirements in respect of each of the courts.
21.43
Magistrates’ Court – the Magistrates’ Court Criminal Procedure
Rules 2009 are silent in respect of the issue of UEA notices. It is the
Director’s Policy that if evidence is sought to be led at either a
summary contest or a committal hearing for a tendency or
coincidence purpose, notice should be given as early as possible (eg,
in relation to committal hearings, it is preferable that the notices be
filed and served at the time of the Case Direction Notice).
21.44
County Court - the County Court Practice Note 2-2010 details the
following obligations–
125
CGL v DPP (2010) VR 486 at [37] citing R v Fletcher (2005) 156 A Crim R 308; R v Smith
(2008) 190 A Crim R 8; Odgers at [1.3.6680].
126
See, for example, PNJ v DPP [2010] VSCA 88 at [11]. When discussing the reasoning
process involved with coincidence evidence, the Court endorsed the approach stated in Hoch
that the probative value of the evidence lies in the improbability of the witnesses giving
accounts of happenings having the requisite degree of similarity unless the happenings
occurred (emphasis added); see also CGL v DPP (2010) VR 486 at [23] and [37].
127
See also R v Ellis (2003) 58 NSWLR 700 as an example of the prosecution seeking to lead
evidence for both tendency and coincidence purposes involving numerous burglaries where the
fact in issue was identification.
33. Tendency and Coincidence Evidence [2014-07-24]
26
21.45
(a)
Initial Directions Hearing or First Directions Hearing for sex
matters not involving a child or cognitively impaired
complainant- The Crown must inform the Court whether certain
evidence (including tendency or coincidence evidence) will be
sought to be led (refer to paragraphs 49-50 and 54-55 of the
Practice Note). NB – in relation to First Directions Hearings for
matters involving child or cognitively impaired complainants,
the Crown must file various documents including a Prosecution
Opening (paragraphs 56-57) – this document should indicate
whether the Crown seeks to lead evidence for tendency or
coincidence purpose.
(b)
Final Directions Hearing – Paragraph 62 and Attachments 2 and
3 of the Practice Note set out standard orders for filing of
documents. For matters not involving a Special Hearing, the
Orders in Attachment 2 require the Crown to file the prescribed
notices of an intention to lead evidence for a tendency or
coincidence purpose 21 days prior to the Final Directions
Hearing (along with the Indictment, Prosecution Opening etc).
For matters involving Special Hearings, the orders in
Attachment 3 require the UEA notices as well as notice to lead
hearsay evidence pursuant to s.377 Criminal Procedure Act
2009 (“CPA”) 21 days prior to the Final Directions Hearing.
There is no prescribed form for notice pursuant to s.377 CPA
and as such, it can simply be noted in the Prosecution Opening.
Supreme Court – Supreme Court Practice Note 4-2010 requires UEA
notices to be filed at the same time as the Indictment, Prosecution
Opening etc. It is to be noted that the Practice Note contains an
“example” of such notices – these examples are not prescribed forms.
The OPP template notices should also be used in the Supreme Court.
Content/form of the notices
21.46
Reliance on tendency and coincidence evidence - If, in relation to the
evidence in question, the Crown seeks to rely upon both tendency
reasoning and coincidence reasoning, it will be necessary to serve
both kinds of notices.128
21.47
Tendency - The required form and content of tendency and
coincidence notices are derived from the UEA, the Evidence
Regulations 2009 (Vic) and case law. The relevant sections of the
Act are ss.97(1)(a) and 99. The relevant regulation is Reg 7(1) of the
Evidence Regulations 2009 (Vic). Relevant cases include Gardiner
where it was held:129
128
129
See for example, R v Ellis (2003) 58 NSWLR 700; CGL v DPP (2010) VR 486 at [37].
Gardiner v R (2006) 162 A Crim R 233 at [128].
33. Tendency and Coincidence Evidence [2014-07-24]
27
“A properly drafted tendency evidence notice should… explicitly identify
the fact or facts in issue upon which the tendering party asserts the evidence
bears. It should also explicitly identify the tendency sought to be proved.”
21.48
Coincidence - The relevant sections of the Act are ss.98(1)(a) and 99.
The relevant regulation is Reg 7(2) of the Evidence Regulations 2009
(Vic). Relevant cases include Zhang where it was held:130
“A properly drafted s.98 Notice involves the identification of four matters –
1. the two or more related “events” the subject of the proposed
evidence;
2. the person whose conduct or state of mind is the subject of the
proposed evidence;
3. whether the evidence is to be tendered to prove that a person did a
particular act, and, if so, what that “act” is;
4. whether the evidence is to be tendered to establish that that person
had a particular state of mind, and, if so, what that “state of mind”
is.”
21.49
Requirements - For the purpose of satisfying the requirement to
include the “substance of the evidence” (Regulations 7(1)(a) and
7(2)(a) of the Evidence Regulations 2009), there are conflicting
authorities as to whether it is sufficient to simply cross reference to
passages and information contained in documents attached to the
notice and/or documents already supplied to the accused.131 It is the
Director’s Policy that in determining whether the substance of the
evidence is to be re-produced in the notice itself, the guiding
consideration should be to ensure that the accused and the court can
readily comprehend the nature and substance of the evidence. As
such, cross-referencing to the source of the evidence (table C of the
respective templates) should only be done if the relevant passages can
be readily identified from the notice.
21.50
Specificity - In drafting tendency or coincidence notices, the
following comment should be borne in mind –
“As a general rule, the greater the degree of specificity with which the
similarities can be identified, the more likely it is that the evidence will
be probative of a tendency to act in a distinctive way or to do acts of a
distinctive kind. Conversely, the greater the degree of generality, the
more difficult it will be to demonstrate that the evidence in question has
‘significant’ probative value and – even more so – to demonstrate that
130
R v Zhang [2005] 158 A Crim R 504, 536 at [131].
Such cross-referencing was permitted in R v AB [2001] NSWCCA 496 but was disapproved
of in R v AN 117 A Crim R 176 at [58-61] in circumstances where the notice simply referred to
the intention to lead evidence as tendency evidence, the substance of which was disclosed in
the brief of evidence previously provided to the accused.
131
33. Tendency and Coincidence Evidence [2014-07-24]
28
its probative value ‘substantially outweighs’ the very real prejudicial
effect of evidence of this kind”.132
However, as was noted in the NSWCCA case of PWD,133 although
the more general the alleged tendency the less likely that it is to meet
the “significant probative value” test, this is not a “statement of
admissibility” but depends upon the facts of each case.
21.50B The notice must be confined to the particular manner or circumstances
in which the accused has previously acted or his state of mind on
occasions other than that the subject of the charge. The notice must
not conflate the tendency evidence and conclusions to be drawn from
that evidence. For example, it must not be asserted that the tendency is
that the accused had a sexual interest in the complainants and that he
acted upon his sexual interest by engaging in the sexual acts
alleged.134
Template - Where the prosecution is giving notice in accordance with
the UEA requirements, it is the Director’s Policy that templates EV1A
(tendency) and EV2 (coincidence) must be used. The information
contained within the templates may be altered or added to, but any
significant departure from the template may result in a subsequent
ruling of non-compliance with the notice requirements.
21.51
Use of “similarities” table - It is also to be noted that the preparation
of a table setting out the requisite similarities and dissimilarities may
be of assistance to the Court. If it is likely to be of assistance, the
table can either be completed at the time of the preparation of the
notice and attached accordingly or may form part of counsel’s written
submissions.135 It is to be noted, however, that these tables are not
required by the notice provisions in the UEA, Evidence Regulations
2009 (Vic) or the authorities.136 Further, the use of such tables may
not be as relevant in light of more recent VSCA decisions 137 which
make it clear that significant probative value can be established
through a pattern of behaviour, underlying unity or modus operandi
without having to necessarily find distinctive or remarkable
similarities. When such a table is prepared, the relevant similarities
identified must include all of the factors which are permitted to be
taken into account, eg, the surrounding circumstances etc, as set out
in paragraphs 21.15-21.20.
132
CGL v DPP (2010) VR 486 at [40].
R v PWD [2010] NSWCCA 209 at [67]-[69] referring to Townsend v Townsend [2001]
NSWCA 136 at [78] and Ibrahim v Pham [2007] NSWCA 215 which held that such evidence
was inadmissible.
134
Velkoski v The Queen [2014] VSCA 121 [22].
135
See for example the comments of the VSCA in PNJ v DPP [2010] VSCA 88 at [21].
136
In PNJ at [21] the Court simply noted that such a table was “helpful” and neither required or
recommended the future use of tables in all matters.
137
NAM v R [2010] VSCA 95 at [27]; GBF v R [2010] VSCA 135 at [27], PG v R [2010]
VSCA 289 at [68] – [71]; KRI v R [2011] VSCA 127 at [57] – [58].
133
33. Tendency and Coincidence Evidence [2014-07-24]
29
Dispensing notice
21.52
Notice does not have to be given if the Court dispenses with the
notice requirement (s.100) or the evidence is adduced to rebut
tendency or coincidence evidence adduced by the accused
(ss.97(2)(b) and 98(2)(b)). Dispensation from the notice requirements
is not likely to be easily obtained. However, a court may be inclined
to waive such notice where there is no unfair prejudice – refer more
particularly to Odgers at [1.3.7180]-[1.3.7200] and [1.3.2420][1.3.2460].
Application of UEA to accused
21.53
The UEA applies to both the prosecution and an accused (with some
modifications). Although the threshold for admission is lower, an
accused is obliged to give notice of any tendency/coincidence
evidence that he/she seeks to lead. Making the necessary application
for leave to cross-examine on such evidence does not necessarily
absolve an accused of the need for a tendency notice - they are still
required to comply with the Evidence Regulations 2009 (Vic).
21.54
If it is suggested that a Crown witness (including complainants) have
a tendency to do any act or have any particular state of mind, then the
provisions will also be activated. It is the Director’s Policy that the
Crown should only oppose an application on behalf of the accused for
the notice provisions to be waived pursuant to s.100 UEA where the
lack of notice results in an unfair prejudice to the Crown. If these
circumstances arise, instructions must be obtained from a Crown
Prosecutor (including consideration of the appropriateness of an
adjournment) prior to opposing the accused’s application for waiver.
Reference may also be had to Odgers at [1.3.7180-1.3.7200] and
[1.3.2420-1.3.2460].
21.55
It is also to be noted that the CPA imposes additional requirements
upon an accused in matters involving alleged sexual offences, when
seeking to cross-examine a complainant about the complainant’s
sexual activities that are not subject of the offences charged.138
Judicial Directions
21.56
It is the Director’s Policy that, consistent with the obligation of
counsel to ensure that trial judges do not fall into error,139 counsel
appearing on behalf of the Crown must be aware of the applicable
authorities relating to jury directions and assist the court accordingly.
In this regard, reference must be had to the JCV Uniform Evidence
138
Refer to Divisions 1 and 2 of Part 8.2 of the Criminal Procedure Act 2009 (particularly
ss.342-352).
139
See R v Clarke and Johnstone [1986] VR 643 at 661. It is to be noted that the duty falls on
both prosecutor and defence counsel: see R v Wright [1999] 3 VR 355 at 356 per Phillips CJ
and Charles JA and at 360-1 per Callaway JA.
33. Tendency and Coincidence Evidence [2014-07-24]
30
Manual140 and the JCV Criminal Charge Book141 in all relevant
matters. Note the comments of the Court of Appeal in Velksoki v The
Queen [2014] VSCA 121 at [230] - [236] in particular. The NSW
Bench Book142 and Odgers143 are also good resources in relation to
jury directions in this area.
Appellate review ss.97, 98 & 101- whether House v King144 applies
21.57
21.58
In NSW, until recently the preponderance of authority145 have held
that a decision in respect of admissibility under ss.97, 98 & 101 is
reviewable on appeal only on the principles stated in House v the
King. However, in the recent bench of 5 decision in Dao146 the
NSWCCA held –

Interlocutory appeals - A majority of the court held that the
principles in House v the King apply to interlocutory appeals.

Post-conviction appeals –

Simpson J (Schmidt J agreeing) held at [206] that House
applied to reviews in both interlocutory appeals and postconviction appeals;

Spigelman CJ held at [70] that House applied to
interlocutory appeals but observed at [61] that the position
may be different in an appeal against conviction. At [61] his
Honour noted that the degree of appellate restraint
applicable to a reversible, interlocutory ruling does not
apply to an appeal after conviction ... as the terminology of
“miscarriage of justice” is broader than the House v King
terminology of “unreasonable or patent injustice”;

Allsop P and Kirby J appear to agree, in substance, with
Spigelman CJ.
In Victoria, prior to the NSWCCA decision in Dao, the VSCA in
PNJ147 (acting upon concessions by both parties) preferred the
approach taken by Basten JA in Zhang148 and Underwood CJ in L v
140
http://www.justice.vic.gov.au/emanuals/UniformEvidenceManual/default.htm
http://www.justice.vic.gov.au/emanuals/CrimChargeBook/default.htm
142
http://www.judcom.nsw.gov.au/bench-books - refer in particular to 5-1600.
143
Odgers at [1.3.7400].
144
(1936) 55 CLR 499. In short, upon such appeals the Appellate Court cannot simply decide
that if it was in the position of the trial judge whether it would have taken a different course.
There must be some other identifiable error by the trial judge (eg, that the judge acted upon a
wrong principle, allowed extraneous or irrelevant matters to guide or affect him/her, mistook
the facts, did not take into account some material consideration etc).
145
R v Fletcher (2005) 156 A Crim R 308, 317 and the majority in R v Zhang (2005) 227 ALR
311, 344 (Basten JA dissenting).
146
Dao v R [2011] NSWCCA 63.
147
PNJ v DPP [2010] VSCA 88
148
R v Zhang (2005) 227 ALR 311, 322.
141
33. Tendency and Coincidence Evidence [2014-07-24]
31
Tasmania149 as it “accords with the approach which this Court has
consistently taken in dealing on appeal with questions of admissibility
of evidence”.150 However, in light of the NSWCCA decision in Dao
this issue was revisited by the VSCA, constituted by a court of 5, in
the matter of KJM v The Queen (No 2) [2011] VSCA 268. The Court
agreed that an interlocutory appeal of a decision under ss 97 & 101
should be governed by the principles in House v King.
List of significant cases
21.59
Set out below is a list of some of the more significant recent decisions
relating to the admissibility of tendency and coincidence evidence.

R v Ellis (2003) 58 NSWLR 700

R v Fletcher (2005) 156 A Crim R 308

AE v R [2008] NSWCCA 52

R v Ford (2009) 273 ALR 286

CGL v DPP (2010) VR 486

PNJ v DPP [2010] VSCA 88

NAM v R [2010] VSCA 95

GBF v R [2010] VSCA 135

R v PWD [2010] NSWCCA 209

JLS v R [2010] VSCA 209

CW v R [2010] VSCA 288

PG v R [2010] VSCA 289

BP v R; R v BP [2010] NSWCCA 303

KRI v R [2011] VSCA 127

DAO v R [2011] NSWCCA 63

KJM v The Queen (No 2) [2011] VSCA 268

DPP v Velkoski [2014] VSCA 121*
*Solicitors should have regard to this Judgment, and ensure that it is drawn to
the attention of counsel, when making decisions with respect to the
149
150
(2006) 15 Tas R 381, 397-402.
PNJ v DPP [2010] VSCA 88 at [16].
33. Tendency and Coincidence Evidence [2014-07-24]
32
admissibility/cross admissibility of tendency evidence, when drafting tendency
and coincidence notices and for the purpose of ensuring that appropriate
judicial directions are given.
Amendment History
Policy issued
Date - 22 September 2010
Policy amended
Date - 17 August 2011 (various amendments)
Policy amended
Date - 23 July 2014 (various amendments)
33. Tendency and Coincidence Evidence [2014-07-24]
33