"The tendency rule"
1. Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
1. the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
2. the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value..."
Reasonable notice is not an issue here.
- S 101 of the Evidence Act relevantly states:
1. This section only applies in a criminal proceeding and so applies in addition to ss 97 and 98.
2. Tendency evidence about a defendant or coincidence evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
- In the context of the Dictionary (of the Evidence Act) definition of "probative value" of the majority of the High Court in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 stated (at [16]):
"Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent… the starting point requires identifying the tendency and the fact or facts in issue which it is adduced to prove"
The majority said (at [20])
"Tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency."
The majority further said at [40]-[42]
"In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether "the court thinks" that the probative value of the evidence is "significant" means that it is inevitable that reasonable minds might reach different conclusions" (emphasis added)
At [64] the majority further stated:
"The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant."
- Issues relevant to these matters will include the nature of the proceedings and whether matters are required to determine "beyond reasonable doubt" (Hughes at [16]). The length of time between relevant events may be of significance in assessing the probative value of particular evidence relied upon for tendency purposes, e.g. R v Dent [2016] NSWSC 99 - (albeit that was a gap of 37 years), R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434. A tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in relevant acts to the claimed tendency (Hughes at [37]).
- Competing inferences arising from the evidence relevant to establish a particular tendency are relevant to the assessment of the "probative value" of evidence of a particular tendency (DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA, JG v R [2014] NSWCCA 9). Such other evidence may "reinforce" evidence otherwise lacking "significant probative value" (Hughes at [62]) or may weaken the inference of "tendency" sought to be established Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425 at [88]-[90]. This, in terms of s 97, requires consideration of "other evidence adduced or to be adduced by the party seeking to adduce the evidence" (s 97(1)(b)).
- In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court held that in assessing the probative value of evidence the Court must proceed on the assumption that the evidence is accepted, that is credible and reliable (at [48]).
The majority of the Court further observed (at [46]) stated that:
"The significance of probative value of the tendency evidence must depend on the nature of the facts in issue to which the evidence is admissible and the significance or importance which the evidence may have in establishing those facts. So understood, the evidence must be influential in the context of the fact-finding."
In IMM the court observed (at [62]-[63])
"In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her."
It is this last paragraph from IMM that the accused relies upon to oppose the admissibility of the tendency evidence from "Cross Admissibility" or "Uncharged Acts".
- The decision of the majority of the High Court in IMM was considered in The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846, an appeal from a decision of the Supreme Court of Victoria. In Bauer the Court resolved to "speak with one voice" on the subject of tendency evidence in single complainant sexual offence cases [47].
- The Court pointed out that the judicial basis of "cross admissibility" of evidence of charged acts and the admissibility of evidence of uncharged acts in such cases rests upon the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and is acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. The Court also pointed out that the fact of itself that evidence of 'uncharged acts' is given by complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused guilt of the charged offences (at [51]).
- The Court then went on at [52]-[59] to review various authorities of the High Court and "intermediate courts" some of which concerned "multiple complainants" some of which concerned a single complainant as was the case in IMM. In respect of that decision the Court noted that the observations of the majority in that case was that the "uncharged act" which was thought not to have significant probative value was relevantly "remote in time" and of a "significantly different order of gravity from the charged offending" (at [55]). The Court noted, at [60], that in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant:
"… there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other.… Evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggest that the accused has a sexual interest in or a sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual assault with him or her it is more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents".
- The Court went on to observe that the question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ (at [61]). In this context, having to consider the issues at bar itself rather than whether it was open to the trial judge to make the relevant conclusion, it noted that the charged and uncharged acts involve one complainant, none of the acts was far separated in point of time or far different in nature and gravity from the others. It therefore concluded:
"There was no need for any "special feature" in order to render the evidence of one charge cross admissible in proof of the other charges or to render the evidence of uncharged acts admissible in proof of the charged acts… (In this case) the "very high probative value" and thus admissibility of the evidence of each charged in uncharged act rested on the logic that, where a person is sexually attracted to another and has acted upon that attraction by engage in sexual acts with him or her, the person is more likely to seek to continue to give effect to that attraction by engaging in further sexual acts with the other person as the opportunity presents".
Thus, the court held that the trial judge was correct to hold the relevant evidence admissible for tendency purposes [62].
- Another authority worth citing, slightly pre-dating Bauer by about a month is McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045. There the majority of the High Court upheld the dissenting judgment of Meagher JA ([2017] NSWCCA 130 at [115]-[130]), as did Edelman J in a separate judgment. The High Court majority concluded, in the context of evidence of alleged tendency arising from a witness, or witnesses, other than the complainant (here relevant to the 'uncharged acts'), that it would;
"usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together".
- The suggested link in that case was the alleged tendency of the accused to act upon his sexual interest in young teenage boys that were under his supervision and were vulnerable approximately 10 years before the events giving rise to the charges in the indictment [31]. The Court held that the respective accounts of the two other witnesses and the alleged victim as to prior events establish no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences the subject of charged to a significant extent.
"It rose no higher in effect than to insinuate that, because the appellant had sexually offended against (the other witnesses) 10 years before, in different circumstances and without any evidence other than the complainant's evidence at trial that he had offended again, he was the kind of person who was more likely to have committed the offences the day alleged".
- Thus the evidence "did not meet the threshold requirement" of 'significant probative value' pursuant to s 97(1) (b) [32].
- As to the operation of s 101 of the Act, in the context of its terms the Court of Criminal Appeal in Hughes ([2015] NSWCCA 330 at [189]-[193]) held (not granted special leave for the High Court Appeal):
"Section 101(2) provides that tendency evidence cannot be used against a defendant in a criminal trial, unless its probative value substantially outweighs its prejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2). see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirby and Schmidt JJ agreeing) stated in DAO at [170]:
"What is involved under s 101 is quintessentially a judgment - a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called 'decision' (read judgment) under s 101 is reviewable only on House v The King principles."
- The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74 at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:
"The question [under s 101(2)] requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228."
- As is the case with s 97, the "no rational explanation" test as held in Pfenning v The Queen (1995) 182 CLR 461; [1995] HCA 7, no longer reflects the appropriate consideration of the matters to be balanced under s 101(2): see Ellis at [95]-[96]. As Campbell JA stated in Ford, at [64]:
"The proper carrying out of the balancing task requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is that the judge has reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [2004] NSWCCA 427 at [47], [58]; R v RN [2005] NSWCCA 413."
- In Sokolowskyj [2014] NSWCCA 55, 239; (2014) 239 A Crim R 528 the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that "[t]he concept of 'prejudicial effect' is understood in substantially the same way as 'unfair prejudice'", as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the "prejudicial effect" the evidence "may have on the defendant" (emphasis added). In DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63, Simpson J considered, at [171], that such terminology meant that:
"… it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect." See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32].
This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial."
- In Hughes from the High Court judgment, in obiter remarks, the majority stated (at [17]):
"In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
- The Court may mitigate or remove the prejudicial effect of tendency evidence by direction (Mol v R [2017] NSWCCA 76 at [36]). The character of relevant prejudice should be specifically identified (Mol op. cit.). This risk in s 101(2) of the Act is concerned with the risk "that the evidence will be misused in some unfair way (e.g.) by provoking an irrational, emotional or illogical response by giving the evidence more weight than it truly deserves or by distracting the jury (R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [72]).