This section deals with directions to be given in relation to evidence that raises the bad character of an accused (sometimes referred to as “propensity evidence”) where it is relevant to an issue in the trial.

Part 3.6 Evidence Act 1995 contains provisions dealing with the admissibility of tendency and coincidence evidence. This is the use of evidence of other acts of misconduct for a propensity purpose: that is, to reason that because of the accused’s conduct in the past he or she is more likely to have committed the offence(s) charged.

However, there is a third category of evidence of a similar nature that is not dealt with by the Evidence Act explicitly but which falls within s 95 of the Act. This is evidence which is not being used to prove tendency or coincidence even though it may raise the accused’s past misconduct. It is often referred to as relationship or background evidence. In sexual assault cases it is called “context evidence”. This category of evidence is not used for propensity reasoning, as it is under ss 97 and 98, but to explain the conduct of the accused and/or another person (usually the alleged victim) against the background of the incident giving rise to the offence charged. This type of evidence is based upon the common law and has not been excluded by the provisions of the Evidence Act: R v Quach [2002] NSWCCA 519.

Evidence can be admitted for various reasons on a non-propensity basis within s 95: eg to rebut good character, R v OGD (No 2) (2000) 50 NSWLR 433; or to prove the state of mind of another person, R v Fordham (unrep, 2/12/97, NSWCCA) (non-consent of complainant).

It is always necessary for the trial judge to require the Crown to specify the purpose for which the evidence is to be placed before the jury as that will determine what sections of the Act apply: DJV v R [2008] NSWCCA 272 at [16]. Where evidence is not admitted as tendency or coincidence evidence then the issues will be whether the evidence is relevant and whether it should be rejected under ss 137 or 135 of the Act.

Generally where evidence is admitted under Pt 3.1 it will be necessary to give a warning against tendency reasoning where there is a real possibility that the jury might use it in that way: Toalepai v R [2009] NSWCCA 270 at [48]; JMW v R [2014] NSWCCA 248 at [147]–[150]; R v Jiang [2010] NSWCCA 277 at [44].

At the time tendency and/or coincidence evidence is adduced, consideration should be given to directing the jury as to the permissible use of the evidence and warning them against its misuse, particularly where they may wonder about the purpose of such evidence, for example, if it is not the subject of a charge in the indictment: Qualtieri v R [2006] NSWCCA 95 at [80].

The judge should avoid using the term “uncharged acts” in relation to evidence of this nature for whatever purpose it is being admitted: HML v The Queen (2008) 235 CLR 334 at [1], [129], [251], [399], [492]; KSC v R [2012] NSWCCA 179 at [64].

Although not confined to particular offences, context evidence is most often admitted in child sexual assault cases. The complainant is permitted to give evidence of other acts of a sexual nature allegedly committed against him or her by the accused even though those acts are not charges in the indictment. The purpose of the evidence is to place the specific allegation(s) in the indictment in the context of the complainant’s overall allegations against the accused in order to assist the jury in understanding the particular allegation(s) in the charge(s).

It is essential to identify the purpose of the evidence tendered by the Crown. Evidence is not admissible simply because it proves the relationship between the complainant and the accused: R v ATM [2000] NSWCCA 475. It must be necessary and capable of providing context to the complainant’s allegations: Norman v R [2012] NSWCCA 230, otherwise the evidence is irrelevant or proves a tendency: DJV v R at [17], [29]–[30], [39]; RWC v R [2010] NSWCCA 332 at [130].

A discussion by the judge of “context evidence” as “relationship evidence” can cause confusion and result in a misdirection, because of the risk of the jury applying tendency reasoning: see for example DJV v R, JDK v R [2009] NSWCCA 76 at [37] and SKA v R [2012] NSWCCA 205 at [280]–[281].

As to the purpose of context evidence, see RG v R [2010] NSWCCA 173 at [38]. It answers hypothetical questions that may be raised by the jury about the allegations giving rise to the charges in the indictment. It may overcome false impressions conveyed to the jury such as that the incident “came out of the blue”: KTR v R [2010] NSWCCA 271 at [90] or “occurred in startling isolation”: KJS v R [2014] NSWCCA 27 at [38]. It may also be admitted to explain lack of complaint by the complainant: DJV v R at [28]; KJS v R at [34](v).

As to the distinction between context and tendency evidence see Qualtieri v R [2006] NSWCCA 95 particularly at [119]ff which was applied in SKA v R, above. In particular the evidence is not admitted to prove the guilt of the accused but may have the effect of bolstering the credit of the complainant.

As to context evidence see generally: P Johnson “Admitting evidence of uncharged sexual acts in sexual assault proceedings” (2010) 22(10) JOB 79; Criminal Practice and Procedure NSW at [3-s 97.15]; Uniform Evidence Law (15 ed, 2020) at [EA.101.150]; Uniform Evidence in Australia (3 ed, 2020) at 59-10.

This is usually evidence of the misconduct of an accused that is being tendered for a non-propensity purpose and, therefore, is admissible under Pt 3.1.

The term “background evidence” is adopted here to refer to relationship and transactional evidence. Relationship evidence is used here in a narrow sense and is to be clearly distinguished from “context evidence” in child sexual assault offences. Not only is the use to be made of the evidence different from context evidence, but also the nature of the evidence will usually be different.

Background evidence places the accused’s alleged conduct and/or state of mind within the surrounding events including the relationship between the accused and the victim, or a series of other incidents which form part of chain of events. Background evidence tends to have a close temporal connection with the incident giving rise to the charge. Background evidence is admissible to prove that the accused committed the offence charged as circumstantial evidence.

Background evidence, however, is not tendency evidence. It does not require tendency reasoning to make it relevant although as circumstantial evidence it relies upon available inferences or conclusions arising from the background evidence to prove the charge.

See generally: Criminal Practice and Procedure NSW at [3-s 97.1] and [3-s 97.10] and Uniform Evidence Law (15 ed, 2020) at [EA.101.150]; Uniform Evidence in Australia (3 ed, 2020) at 97-7.

The function of a direction in the case of background evidence is to inform the jury of the limited purpose for which the evidence is admitted and to direct them against using the evidence for tendency reasoning. The content of the direction will depend substantially upon the nature of evidence and the purpose it is being admitted. For example, if it is admitted to rebut a defence of accident. The direction should contain the following components:

The admission of tendency evidence is governed by Pt 3.6 Evidence Act. It requires two preconditions: (a) the giving of notice and (b) that the evidence has “significant probative value”.

See generally Criminal Practice and Procedure at [3-s.94.1]ff; Uniform Evidence Law at [EA.96.30]ff; Uniform Evidence in Australia (3 ed, 2020) at Pt 3.6-1ff.

Section 94(4), which was inserted into the Act in 2020 and affects hearings which commenced from 1 July 2020, states that any principle or rule of the common law or equity preventing or restricting the admissibility of tendency or coincidence evidence is not relevant when applying Pt 3.6.

The following discussion of the caselaw must be read with the terms of s 94(4) in mind. Taylor v R [2020] NSWCCA 355 contains a useful summary of the caselaw: at [94]–[122].

In determining the probative value of evidence for the purposes of ss 97(1)(b) and 137, a trial judge should assume the jury will accept the evidence and, thus, should not have regard to the credibility or reliability of the evidence: IMM v The Queen at [51]–[52], [54], [58]; The Queen v Bauer at [69].

For evidence to be admissible as tendency it is not necessary that it exhibit an “underlying unity”, “a modus operandi” or a “pattern of conduct”: Hughes v The Queen at [34] approving the approach in R v Ford [2009] NSWCCA 306, R v PWD [2010] NSWCCA 209, Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682. It is not necessary that the common features be “striking”. What is needed is a sufficient link between the distinct events as to mean that one piece of conduct has significant probative value as regards another. That link need not be peculiar: Decision Restricted [2022] NSWCCA 246 at [93]; The Queen v Bauer at [57]. There is no general rule requiring close similarity between the tendency evidence and the offence: TL v The King [2022] HCA 35 at [29]. Depending upon the issues in the trial, 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 the acts which evidence it: Hughes v The Queen at [37]. Section 97(1) does not condition the admissibility of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. Commonly there may be a similarity between the tendency asserted and the offences charged: Hughes v The Queen at [39].

A “close similarity” between the tendency evidence and the charged offence will almost certainly be required where the evidence is adduced to prove the identity of an offender: Hughes v The Queen at [39]. However, this should be understood as referring to situations where there is little or no other evidence of identity apart from the tendency evidence and the identity of the perpetrator is “at large”: TL v The King at [30], [38].

The test posed by s 97(1)(b) is whether the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged: Hughes v The Queen at [40]. In the case of 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: Hughes v The Queen at [40].

Where there is cross-admissible tendency evidence between two or more complainants, it is an error to group the conduct of each complainant together then formulate an alleged tendency in a manner specific to both of them: Decision Restricted [2022] NSWCCA 259 at [65]. Further, the tendency should not be expressed in precisely the same terms as the facts making up the charged offence: Decision Restricted at [97]; Hughes v The Queen at [41].

Section 161A of the Criminal Procedure Act 1986 was inserted by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 and took effect on 1 March 2021: s 2, Stronger Communities Legislation Amendment (Miscellaneous) Act.

Section 161A(1) states that when evidence is adduced as tendency or coincidence evidence, the jury must not be directed that evidence needs to be proved beyond reasonable doubt. The only exception is provided for in s 161A(3) when the case is one where there is a significant possibility the jury will rely on that evidence as being essential to its reasoning in reaching a finding of guilt: see Shepherd v The Queen (1990) 170 CLR 573; The Queen v Bauer at [86]. Such cases are likely to be rare. An example is Adams v R [2017] NSWCCA 215.

In JS v R [2022] NSWCCA 145, it was held at [47] that s 161A(1) was not restricted to only uncharged acts but also had application to charged acts which were cross-admissible on a tendency basis.

It is appreciated that the structure of a summing-up is a matter for the personal preference of judges. However, consideration should be given as to when a tendency direction might best be given to minimise the risk of confusion on the jury’s part as to any standard of proof to be applied. For example, it may be given before the directions about the onus and standard of proof and the essential elements of the offence/s. Alternatively, it may be given shortly after directions concerning the drawing of inferences. The timing may vary depending on the issues in the particular trial.

The suggested direction at [4-227] is based on the text of s 161A. As with all suggested directions, the direction will require adaptation to suit the evidence and issues arising in the case at hand. The observations in JS v R should also be taken into account, including at [40] that the directions need to be crafted carefully to avoid undermining general directions concerning proof beyond reasonable doubt for each charge, and at [41] that the important direction is, that having weighed all of the relevant evidence, the jury must be satisfied beyond reasonable doubt that each element of each charge has been established. It was held in JS that such directions may also be necessary in relation to cross-admissible charged acts: [41].

In BRC v R [2020] NSWCCA 176, it was held that a warning a jury should not reason that because the accused had committed one or more other acts relied upon to establish a tendency the accused was a person of “bad character” may negate a tendency direction: Simpson AJA at [72]; Hamill J similarly at [96]. It was also held that a warning the jury “cannot punish” an accused for conduct the subject of other charges in the indictment would be inapposite: Simpson AJA at [74]. Hamill J likened this to a “no substitution” warning and agreed it was only apposite in respect of uncharged conduct: at [103], [105].

The following suggested direction complies with s 161A(1) Criminal Procedure Act 1986 in not directing that tendency evidence needs to be proved beyond reasonable doubt. It will require modification by directing as to that standard of proof where the exception in s 161A(3) applies.

A tendency may be proved by evidence of “the character, reputation or conduct of a person, or a tendency that a person has or had”: s 97(1) Evidence Act. The suggested direction refers only to “conduct” and will require modification in a case in which it is sought to be proved in an alternative way.

Inferential reasoning is usually involved in deciding whether a tendency has been established so it will be helpful if the jury has already been directed as to the care required in the drawing of inferences generally.

Trial judges should be alive to any possible prejudicial misuse of tendency evidence that might arise in a particular case and add any further warning that may be required.

Section 97A applies to proceedings in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. It took effect on 1 July 2020. The Attorney General described the provision as altering the operation of s 97(1)(b) for child sexual abuse prosecutions in order to facilitate greater admissibility of tendency evidence (see Second Reading Speech, Evidence Amendment (Tendency and Coincidence) Bill 2020, NSW, Legislative Assembly, Debates, 25 February 2020, p 1914).

The transitional provisions for the amendment state s 97A does not apply where the hearing of proceedings began before the amendment commenced: Sch 2, cl 28. Where the application of the transitional provisions is in issue, it will be necessary to identify the relevant “hearing” of the proceedings and to determine when it began: JW v R [2022] NSWCCA 206 at [54]. For example, with respect to fitness to plead inquiries and special hearings under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (and its predecessor, the Mental Health (Forensic Provisions) Act 1990 (rep)), fitness inquiries are a preliminary step and the special hearing is the substantive hearing of the underlying proceedings: JW v R at [57]–[58].

Under s 97A(2) there is a presumption that tendency evidence about the following will have significant probative value for the purposes of ss 97(1)(b) and 101(2):

A court retains a discretion to determine such evidence does not have significant probative value if satisfied there are sufficient grounds to do so: s 97A(4). However, s 97A(5) lists the following matters (whether considered individually or collectively) the court is not to take into account in determining whether there are sufficient grounds, unless there are exceptional circumstances in relation to those matters:

The terms “sufficient grounds” (in s 97A(4)) and “exceptional circumstances” (in s 97A(5)) are not defined. As to the former, the Attorney General, during the Second Reading Speech introducing this amendment, said (Second Reading Speech, NSW, Legislative Assembly, Debates, 25 February 2020, p 1915):

And of the latter:

The admissibility of coincidence evidence is governed by s 98 Evidence Act. It requires two preconditions: (a) the giving of notice and (b) that the evidence has “significant probative value”.

See generally Criminal Practice and Procedure NSW at [3-s 98.1]ff; Uniform Evidence Law (15 ed, 2020) at [EA.98.60] ff; Uniform Evidence in Australia (3 ed, 2020) at 98-1.

If the evidence is admissible under s 98, it must then satisfy s 101, which is concerned with balancing its probative value against its prejudicial effect. The questions posed by ss 98 and 101 turn on a mode of reasoning based on the improbability that something was a coincidence: see the explanation in Selby v R [2017] NSWCCA 40 at [24]–[26]; Ceissman v R [2015] NSWCCA 74 at [42]. The improbability that something was a coincidence is not displaced by the fact that the two (or more) events bear some dissimilarities. The question is whether the dissimilarities are relevant in that they undercut the improbability of something being a coincidence and whether they detract from the strength of the inferential mode of reasoning permitted by s 98: Selby v R at [24], [26].

As to the possibility of concoction, see Tendency evidence at [4-225] above.

In cases where the coincidence evidence is not the only evidence against the accused, there is no requirement that the coincidence evidence be proved beyond reasonable doubt: s 161A(1) Criminal Procedure Act 1986. However where there is a significant possibility that a jury will rely on the coincidence evidence as being essential to its reasoning in finding guilt, then it will have to be proved beyond reasonable doubt: s 161A(3) Criminal Procedure Act 1986. See [4-226] Standard of proof — s 161A Criminal Procedure Act 1986.

See the discussion at [4-200] Introduction concerning the timing of a direction when such evidence is given.

The coincidence evidence may arise from the charges in the indictment, in that the joinder of the charges was based upon the admissibility of each of the charges as evidence of coincidence in respect of each of the other charges, see for example O’Keefe v R [2009] NSWCCA 121. In such a case the suggested direction will need to be amended. However, simply because the charges are joined on the basis of the availability of coincidence reasoning, the judge is not required to direct the jury that it must find one of the offences proved beyond reasonable doubt before it can use that charge as basis of coincidence reasoning: Folbigg v R [2005] NSWCCA 23 at [103].

The suggested direction concerns proving the accused’s identity but the coincidence evidence can be used as proof of a state of mind, for example, to rebut accident. Coincidence evidence is a form of circumstantial evidence and will usually form part of the circumstantial case together with other evidence that may indirectly prove the guilt of the accused.

Coincidence evidence may be admitted to bolster the evidence of the witnesses, for example in a case where the evidence of two complainants is admitted in respect of charges in the indictment of offence committed against each: R v F [2002] NSWCCA 125; Saoud v R (2014) 87 NSWLR 481 at [49]–[53]. If the evidence of the two witnesses shows sufficient similarity to be admissible as coincidence evidence, it can be used to prove that the two witnesses would not make up those versions independently and by chance. In such a case the issue of concoction may arise and require a direction to the jury that they should reject the possibility of concoction before using the evidence for coincidence reasoning.