Tendency and Coincidence Evidence (Vic)
Tendency and coincidence evidence, also known as propensity or similar fact evidence, is evidence that a person has a tendency to commit certain acts, based on the fact that they have done similar acts before, or that it is likely that an accused committed multiple acts based on the similarity of multiple allegations. Tendency and coincidence evidence is often adduced where an accused allegedly committed child sex offences on multiple occasions. It often consists of evidence from other alleged victims that they have been assaulted by the accused or evidence of prior convictions for similar offences or evidence of other illegal conduct with which the accused has not been prosecuted, such as ‘grooming’ children.
Evidence may be adduced that because an accused engaged in sexual acts with a small child, that he has a tendency to do so, or that he is alleged to have assaulted two children in so strikingly similar circumstances that it is unlikely to be a coincidence.
The tendency rule
Under Victorian law, evidence of the character, reputation or conduct of a person or a tendency that they have a particular state of mind or has acted in a particular way is admissible in a criminal proceeding only if:
- The party seeking to adduce the evidence has given the other parties reasonable notice in writing of their intention to adduce this evidence;
- The court considers that the evidence is likely to have significant probative value;
- The court considers that the probative value of the evidence substantially outweighs its prejudicial effect.
These matters are set out in sections 97 and 101 of the Evidence Act.
Legal scholar Steven Odgers sets out the features relevant to determining whether evidence is more probative than prejudicial in his book, Uniform Evidence Law in Victoria and this list has been reproduced by the Victorian Supreme Court.
These features are:
- The number of occasions the conduct occurred;
- The time gap between the various occasions;
- The degree of similarity between different occasions;
- The degree of similarity between the circumstances on different occasions;
- Whether the tendency evidence is disputed;
- The issue to which the tendency evidence is relevant.
In a case where a party proposes to adduce tendency evidence involving multiple complainants, the evidence will be inadmissible if there is a ‘reasonable possibility’ that there has been collusion, concoction or contamination between the complainants.
Coincidence evidence is evidence that there have been two or more events when the evidence is adduced in order to establish that the accused did an act or had a state of mind based on the assertion that the similarity of the events makes it unlikely that they were a coincidence.
Coincidence evidence will be admissible only if the party seeking to adduce it gave the other parties reasonable notice in writing of their intention and if the court thinks that the evidence is likely to have significant probative value (Evidence Act, Section 98).
There are two types of coincidence evidence. Firstly, where two or more events have occurred under circumstances where the conduct is ambiguous. The similarity of the events can be used to pursue an argument that it is unlikely they occurred accidentally or coincidentally and that they were, in fact, the result of the accused’s criminal actions.
Secondly, where there is evidence that two or more similar allegations were made under circumstances where it is implausible that the complainants have independently to make similar yet false allegations against the same person. In this situation, the similarity of the allegations leads to the conclusion that the evidence of the complainants is the truth.
As with tendency evidence, coincidence evidence is inadmissible if there is a reasonable possibility of concoction or collusion among the witnesses.
Tendency and coincidence
In many cases, the same evidence can be relied on as both tendency evidence and coincidence evidence. For example, where two sexual assault complainants give evidence that the same person assaulted them, this could be adduced as tendency evidence (ie. If the court is satisfied that person A is telling the truth, this establishes that the accused has a tendency to commit sexual assaults and therefore, it is likely that he sexually assaulted person B) or as coincidence evidence (ie. it is unlikely that two independent persons have made similar false allegations against the same individual). The prosecution will usually choose to pursue the stronger of these arguments, rather than running both tendency and coincidence.
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