Tendency Evidence (NSW)

In criminal trials, a party may seek to adduce tendency evidence, which is also known as similar fact evidence or propensity evidence in other jurisdictions. Tendency evidence is relevant in cases where a pattern of behaviour can be used to demonstrate that a person has or had a tendency that makes it likely that they committed an act. This page examines when tendency evidence is admissible in criminal proceedings in New South Wales.

Legislation

The laws around tendency evidence in New South Wales are set out in sections 94 to 101 of the Evidence Act 1995.

The tendency rule

Section 97 of the Evidence Act 1995 provides that evidence of a person’s character, reputation or conduct is not admissible to establish they have or had a tendency unless:

• The party seeking to rely on the evidence gave reasonable notice to the other party of their intention to do so;
• The court considers the evidence will have significant probative value. 

Tendency evidence has complex rules of admissibility and case law in relation to its application is constantly evolving. 

Tendency evidence and child sex offences

Section 97A of the Evidence Act 1995 provides that in a matter where an accused’s commission of a child sex offence is at issue, evidence is presumed to have significant probative value if it relates to:

• The accused’s sexual interest in children
• The accused acting on a sexual interest in children

However, the court may find that the evidence does not have significant probative value and exclude it from the trial if there are sufficient grounds to do so.

Who may adduce tendency evidence?

The prosecution relies on tendency or coincidence more commonly than the defence, however, it can be an incredibly powerful tool to use in a defence case.  There is no prohibition on adducing tendency evidence in a defence case and in fact it is often easier to do so as the rules about admissibility are less prohibitive. 

Examples of when tendency evidence might be adduced in a defence case include:

• To establish that a complainant has a pattern of fabricating allegations; and
• To establish that a complainant has a history of violence  (this can be particularly effective in violence offences where self defence is raised by the accused).

The effect of Tendency Evidence

If Tendency evidence is admitted about an accused, and if the Magistrate, Judge or Jury is satisfied the accused did have a tendency to act in a particular way, they can use that in considering whether it is more likely that the accused committed the specific offence(s) with which they are charged.

 If Tendency evidence is admitted about a complainant, similarly, if accepted such evidence can be used to support a defence proposition that a complainant acted in a particular way.

The rules regarding Tendency evidence and its use are very complicated and incredibly persuasive if admitted so it is important to get expert legal advice to assist you in matters where this might be relevant. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.