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. 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

In other words, whether the evidence will be admitted depends on the extent to which it could rationally affect the court’s assessment of the probability of a fact at issue.

The coincidence rule

Section 98 of the Evidence Act 1995 provides that evidence that two or more events occurred is not admissible to establish that a person did an act or had a state of mind on the basis that similarities in the events or circumstances make it improbable that they occurred coincidentally unless:

• The party that seeks to adduce the evidence gave reasonable notice to the other party of their intention to do so;
• The court thinks the evidence will have significant probative value

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. Tendency evidence is usually adduced to try to establish that the defendant has a tendency to behave in a certain way. However, the defence can also rely on tendency evidence – for example, where there is an inference that the complainant has a pattern of fabricating allegations.

Pfennig v The Queen and propensity evidence

The circumstances under which similar fact evidence is admissible in criminal proceedings were established in the 1994 High Court decision of Pfennig v The Queen.

The case involved a conviction for the abduction and murder of a ten-year-old boy. The defendant appealed on the basis that evidence his previous sex offences against other boys should not have been admitted.

The High Court upheld the conviction but provided guidance on the admissibility of similar fact evidence in criminal trials.

The court found that the law does not prohibit the use of propensity reasoning in all circumstances. However, a court must not admit such evidence simply because it has probative or even strong probative value. The probative value of the evidence must be so strong that its admission as evidence should be prioritised over the risk of an unfair trial.

In cases where the risk of an unfair trial is very high, the probative value of the propensity evidence will need to be so high that the accused’s guilt is a virtual certainty. Where the risk of an unfair trial is lower, the evidence may be admitted because it is merely probative of the accused’s guilt. Where the prosecution case depends entirely on propensity evidence, the evidence must be so cogent that there is no rational explanation of it that is consistent with the accused’s innocence.

Conclusion

Tendency evidence may be admitted in a criminal trial where the other party has been given notice and where the court is satisfied that the evidence has significant probative value. The test for whether tendency evidence should be admitted in a criminal trial was first outlined in 1994 and has since been codified in legislation.

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