PART 3.6 – Tendency and Coincidence

Section 95: Use of Evidence for Other Purposes

AH
(1997) 42 NSWLR 702 (NSW CCA)
Evidence Act 1995 (NSW) s.95 - sexual offences on niece - evidence of sexual relationship other than that charged in indictment allowed
Held: once evidence has been admitted it cannot be used as tendency evidence unless it complies with s.97 and s.101 guidelines

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.95 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help.
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Gilbert
NSW CCA 10.12.1998
Evidence Act 1995 (NSW) s.95
Held: need direction that evidence admitted to show relationship should not be used to demonstrate propensity to offend.

Veitch
NSW CCA [185] 14.7.1999
Evidence Act 1995 (NSW) s.95 - sexual offences on stepson - led evidence of other occasions of sexual abuse.
Held: Crown did not make clear whether evidence of other sexual acts led as relationship evidence or guilty passion - no explanation to jury of limitations of evidence or meaning of “guilty passion” - judge did not give appropriate directions as to purpose evidence could be put - appeal allowed.

Patsalis & Spathis [No. 4]
NSWSC [715] Kirby J 20.7.1999
Evidence Act 1995 s.95 - murder - P gave police handwritten statement “explaining” his role in murder - statement contained reference to two episodes of possible criminal behaviour on the part of P - obtained money from S by false representation - Crown seeking to rely upon statement.
Held: admissible as relationship evidence and evidence of possible motive - will need warning under s.136(a) as to relevance and use of evidence.

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 s.95 - attempt obtain possession commercial quantity of heroin - Crown led evidence that appellant a prisoner on work release at time of offence to rebut appellant’s claim he was simply doing a favour for a friend and had no knowledge of drugs.
Held: evidence not adduced for purpose of showing tendency - irrelevant that effect of evidence was to show tendency of appellant to commit offences.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) s.95 - murder of wife - arranged for two co-offenders to kill wife by heroin overdose - motivated by custody dispute over son - Crown led evidence appellant had put heroin in V’s coffee cup week before murder - evidence came from statements made by V to neighbour, friend and police officer - inference that heroin put in coffee cup to make it look like V used heroin - attempting to make death look like suicide.
Held: no inflexible rule that where relationship evidence led there must be a direction that evidence not to be used as evidence of tendency to commit offences.

MM
(2000) 112 A Crim R 519; NSW CCA [78] 24.5.2000
Evidence Act 1995 s.95 - sexual offences against young male - evidence of uncharged acts relied upon by Crown to prove propensity to commit offence.
Held: allowing appeal - judge needed to direct jury they cannot use evidence to show propensity unless proved beyond reasonable doubt - needed to identify relevant evidence to jury.

Section 97: The tendency rule

Lewis
NSWSC (Dowd J) 24.6.1997
Evidence Act 1995 (NSW) s.97 - application by defence to tender photographs of witness wearing sheath knife - attempt to show witness had tendency to carry knife as member of motor cycle club
Held: evidence allowed

Lockyer
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.97 - murder of young child - accused sought to show reasonable possibility mother killed baby - sought to show reasonable possibility mother responsible for previous injuries to child.
Held: “significant probative value” means ‘important’ or ‘of consequence’ - significance of tendency evidence depends upon nature of the fact in issue to which it is relevant and the importance that evidence may have in establishing that fact - evidence admissible

Hancock
NSW CCA 21.11.1996
Evidence Act 1995 (NSW) s.97 - AOABH - cross-examined complainant about previous incident where complainant attacked man with hammer - relevant to self defence - Crown granted leave to cross-examine appellant on criminal record under s.104 - evidence dealt with solely as going to credit
Held: evidence of appellant’s criminal record was clearly tendency evidence and therefore had to satisfy the conditions of s.97 and 101 - substantial prejudice to appellant - evidence should have been excluded

Huang-Tung, Tam & Kuan
NSWSC (Barr J) 25.2.1997
Evidence Act 1995 (NSW) s.97 - drug importation - drugs sealed in plastic bags secreted in base of painting - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - Asian males receiving crates with Chinese glass-framed paintings
Held evidence admitted - significant probative value substantially outweighing any prejudicial effect

Lock

Evidence Act 1995 (NSW) s.97 - stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbings of victim by accused.
Held: evidence not admissible as tendency evidence (although admitted as relationship evidence) - “significant probative value” means more than mere relevance but something less than substantial degree of relevance - important, of consequence.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.97 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.97 - importation of drugs - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting the presence of the two co-accused in Sydney on previous four occasions
Held: evidence admitted - significant probative value substantially outweighing any prejudicial effect

Fowler
NSWSC (Dowd J) 15.5.1997
Evidence Act 1995 (NSW) s.97 - application by defence to cross-examine Crown witness as to violent disposition of witness, criminal history of witness after murder and tendency of witness to influence jurors and other witnesses.
Held: leave granted to cross-examine as to tendency.

Gabriel v The Queen
Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.97 - street fight resulted in stabbing of V - evidence given by witness that accused had told him he intended to do a robbery that day - Crown referred to proposed evidence in opening statement
Held: evidence breached s.97 and 101 - no probative value - evidence should not have admitted - could not be corrected by a direction to the jury.

AH
(1997) 42 NSWLR 702; NSW CCA 27.11.1997
Evidence Act 1995 (NSW) s.97 - sexual offences on niece - evidence of sexual relationship other than that charged in indictment allowed
Held: if evidence introduced as relationship evidence s.97 and s101 irrelevant - once evidence has been admitted it cannot be used as tendency evidence unless it complies with s.97 and s.101 guidelines - if evidence to be used to show guilty passion must comply with s.97 and s.101 - evidence must have significant probative value that substantially outweighs danger of prejudice - there must be no reasonable view consistent with innocence (Pfenning 182 CLR 461 at 483-4, 485)

Fordham
98 A Crim R 359; NSW CCA 2.12.1997
Evidence Act 1995 (NSW) s.97 - sexual offences on 55y complainant, mildly intellectually disabled - evidence of complainant as to violence inflicted by appellant before and after offences - evidence that violence an integral part of relationship.
Held: evidence admissible to show nature of relationship, lack of consent and knowledge of accused as to lack of consent - fact that some violence occurred after offences goes only to weight.

Osman
NSW CCA 10.3.1998
Evidence Act 1995 (NSW) s.97 - aggravated sexual assault on de facto - defence refused leave to lead evidence from witness that complainant had previously acted in aggressive manner towards the appellant.
Held: evidence wrongly excluded - critical issue was consent - evidence as to relationship crucial - significant probative value and would not have been excluded under s.97 - followed Lock 91 A Crim R 356 at 360-1

Gipp

Queensland case - sexual assault on step daughter - evidence of sexual abuse not subject of indictment - Judge directed jury they did not need to satisfied of this evidence beyond reasonable doubt
Held: (allowing appeal by majority) - judge gave inadequate and inappropriate warning as to dangers of such evidence.
Held: lack of common agreement as to admissibility of evidence
(McHugh & Hayne JJ) - evidence correctly admitted to place relationship in context and did not go to tendency (guilty passion)
(Kirby J) - evidence admissible as ‘tendency evidence’ only if probative value outweighs danger of prejudice.
(Callinan J) - evidence was propensity evidence and should not be led as “background” evidence
(Gaudron J) - evidence inadmissible unless admitted to rebut subsidiary issue raised by accused

Fraser
NSW CCA 10.8.1998
Evidence Act 1995 (NSW) s.97(1) - sexual assault - Crown led evidence of sexual acts not subject of indictment - some acts alleged to have taken place some years after indictment offences when complainant was an adult.
Held: Gipp did not change law in this state - still follow AH (1997) 42 NSWLR 702, Beserick (1993) 30 NSWLR 510, Wickham NSW CCA 17.12.1991 and B (1992) 175 CLR 599 - later sexual acts too remote to show either relationship or guilty passion - earlier sexual acts admissible to put relationship in context and show guilty passion and to rebut issues raised by accused.

Greenham
NSW CCA [8] 8.3.1999
Evidence Act 1995 (NSW) s.97(1) - aggravated indecent assault of 13y complainant - complainant gave evidence of sexual impropriety other than that charged.
Held: evidence may be admissible to place acts charged in context and demonstrate guilty passion by accused for complainant - if led to demonstrate guilty passion, it is tendency evidence which must meet tests in s97(1) and s.101(2) - must also consider s.409B(3) Crimes Act and s.136 and 137.

BDF
NSW CCA [98] 6.5.1999
Evidence Act 1995 (NSW) s.97 - child sexual assault
Held: evidence by complainant’s mother that accused would often walk naked around house not tendency evidence and admissible.

Veitch
NSW CCA [185] 14.7.1999
Evidence Act 1995 (NSW) s.97 - sexual offences on stepson - led evidence of other occasions of sexual abuse.
Held: Crown did not make clear whether evidence of other sexual acts led as relationship evidence or guilty passion - no explanation to jury of limitations of evidence or meaning of “guilty passion” - judge did not give appropriate directions as to purpose evidence could be put - appeal allowed.

Patsalis & Spathis [No. 4]
NSWSC [715] Kirby J 20.7.1999
Evidence Act 1995 - s.97 - murder - P gave police handwritten statement “explaining” his role in murder - statement contained reference to two episodes of possible criminal behaviour on the part of P - obtained money from S by false representation - Crown seeking to rely upon statement.
Held: evidence does not satisfy tendency requirements under s.97 - admissible for other purposes - admissible as relationship evidence giving jury full understanding of circumstances surrounding killing - also admissible as evidence of possible motive - do not have to satisfy test of Pfennig that evidence must be consistent only with guilt of accused - will need warning under s.136(a) as to relevance and use of evidence.

Adam
NSW CCA [189] 23.7.1999; 106 A Crim R 510
Evidence Act 1995 (NSW) s.97 - maliciously inflict grievous bodily harm – police officer murdered outside hotel - evidence accused had been staring at patron of hotel prior to assault on victim admitted.
Held: O’Leary v The King (1946) 73 CLR 566 principle has not abolished by Evidence Act - evidence admissible as conduct by accused forming integral part of “transaction” consisting of connected events - conduct falling within O’Leary is not evidence showing particular disposition or propensity.

Colby
NSW CCA [261] 26.8.1999
Evidence Act 1995 - ss.97, 98 - aggravated sexual assault - victim alleged appellant committed frequent and unusual sexual acts - Crown relied on evidence from appellant’s three former wives that appellant engaged in frequent and unusual sexual acts as tendency or coincidence evidence.
Held: admissible as tendency evidence (s.97) and to rebut co-incidence (s.98) - similarities between evidence of wives and complainant significant - Hoch should be applied where Crown relies on evidence to establish tendency or rebut coincidence - if reasonable possibility of concoction evidence must be rejected because risk deprives evidence of its significant probative value, regardless of its substantial and relevant similarity - in this case no real chance of concoction - evidence properly admitted.

Phillips
NSWSC (Bell J) [1175] 17.12.1999
Evidence Act 1995 - ss.97, 98 - murder of infant child - 8m son found in cot with breathing difficulties - post mortem found cause of death either SIDS or induced asphyxia - Crown sought to lead evidence of previous deaths of two children and life threatening incidents involving hospital visits for 4 of 5 children - Crown argued proved death of third child caused by induced asphyxiation - tendency evidence showing accused tended to conduct herself in manner detrimental to children.
Held: no expert prepared to exclude hypothesis consistent with innocence for each incident - all incidents had possible innocent medical explanations - evidence did not exclude reasonable hypothesis consistent with innocence - evidence inadmissible

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 - s.97 - convicted of attempt obtain possession commercial quantity of heroin - Crown led evidence that appellant a prisoner on work release at time of offence - evidence led to rebut appellant’s claim he was simply doing a favour for a friend and had no knowledge of drugs - where evidence incorrectly admitted.
Held: dismissing appeal - Judge did not need to consider admissibility under s.97 or s.101 because evidence not adduced for purpose of showing tendency - irrelevant that effect of evidence was to show tendency of appellant to commit offences.

GLC
NSW CCA [90] 31.3.2000
Evidence Act 1995 - s.97 - sexual offences against two complainants - Crown sought to lead evidence of both complainants in relation to all counts.
Held: Crown conceded evidence did not satisfy ss.97 or 98 requirements - offences occurred 4-5 years apart - no striking similarities - 5 year age difference in complainants.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) - s.97 - murder of wife - arranged for two co-offenders to kill wife by heroin overdose - motivated by custody dispute over son - Crown led evidence that appellant had put heroin in V’s coffee cup week before murder - evidence came from statements made by V to neighbour, friend and police officer - inference that heroin put in coffee cup to make it look like V used heroin - attempting to make death look like suicide.
Held: dismissing appeal - evidence admissible as relationship evidence under Wilson (1970) 123 CLR 334 and Frawley (1993) 69 A Crim R 208 - evidence went to issue of motive, consciousness of guilt and as preparatory act to murder - s.97, s.98 and common law rules on similar fact evidence do not apply to relationship evidence - admissibility depends upon relevance to issues and discretion to exclude evidence where prejudicial effect outweighs probative value - similar fact evidence test set out in Pfennig does not apply - no inflexible rule that where relationship evidence led there must be a direction that evidence not to be used as evidence of tendency to commit offences.

Player
NSW CCA [123] 12.4.2000
Evidence Act 1995 - s.97 - malicious damage - smashed window of fruit shop while intoxicated - security officers investigating sound of smashed glass observed offender behaving in aggressive manner kicking a bin and hitting a sign.
Held: answering stated case - judge did not err in admitting evidence of subsequent aggressive behaviour - not tendency evidence under s.97 - admissible as evidence of state of mind of appellant so close to commission of offence as to permit inference that same state of mind existed at time of offence - also admissible as part of transaction consisting of connected evidence (followed Adam and O’Leary).

MM
(2000) 112 A Crim R 519; NSW CCA [78] 24.5.2000
Evidence Act 1995 - s.97 - charged with sexual offences against young male - where evidence of uncharged acts relied upon by Crown to prove propensity to commit offence.
Held: allowing appeal - judge needed to direct jury they cannot use evidence to show propensity unless proved beyond reasonable doubt - needed to identify relevant evidence to jury.

Willoughby
NSWSC [751] Greg James J 31.7.2000
Evidence Act 1995 (NSW) s.97, 99, 101 - murder - Crown led evidence showing accused’s mobile phone used at time when assailant seen using mobile phone - sought to lead further evidence that accused used phone to carry on marijuana trade to show exclusive use of phone.
Held: evidence admissible - highly relevant to case where issue is identification of assailant - evidence of marijuana dealing not so prejudicial - not violent and can be dealt with by direction - Crown’s failure to give reasonable notice means jury discharged.

Martin
NSW CCA [332] 25.8.2000
Evidence Act 1995 s.97 - sexual intercourse without consent - climbed into bed with sleeping woman in lodge and forced intercourse - Crown led evidence that appellant had tried to do identical thing to another woman 15-30 minutes earlier
Held: evidence admissible - probative because could rationally affect issue of whether appellant cared about consent of complainant.

Holt
NSWSC [232] (Sully J) 30.3.2001
Evidence Act 1995 s 97 - murder - homeless man accused of bashing another homeless man to death with iron bar - no witnesses to offence - issue was whether accused struck victim with bar.
Held: current tension between common law approach to similar fact evidence and interpretation and application of statutory scheme under s.97 and s.102 - see Hulme in Le NSW CCA [49] 7.3.2000 for summary - until AH overturned must follow that case - Crown must establish no reasonable view of evidence consistent with innocence.
Held: evidence from various people as to violent and erratic behaviour of accused prior to night of killing inadmissible - extent to which such evidence could affect assessment of probability accused had struck victim slight and outweighed by prejudicial effect.
Held: evidence accused prone to mood swings and probably suffering from paranoid schizophrenia inadmissible - not probative of fact in issue.
Held: evidence of plea of guilty by accused to striking man with iron bar two days after killing inadmissible - cannot answer question of whether accused struck victim - relationship evidence.
Held: evidence of finding of steel bar in accused’s room after killing inadmissible - no connection to killing.
Held: arrest of accused several months after killing for unprovoked and violent attack on innocent driver of car inadmissible - incident well removed from killing.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 - s.97 - murder - evidence of hostile relationship between appellant and deceased - whether “relationship evidence” admissible - evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant.
Held: admissibility of “relationship evidence” governed by Evidence Act - its reception turned upon three issues: relevance, application/avoidance of any exclusionary provision, and whether any order should have been made under ss135-137. [R v Frawley (1993) 69 A Crim R 208 distinguished - numerous authorities referred to] - evidence properly admitted - evidence relevant – did not relate to so remote a period of time as to prevent it from being relevant - related to events happening no more than five weeks before the killing of the deceased - no error in not excluding under s135-137.

Bell
NSW CCA [2] 1.2.2002
Evidence Act 1995 - s.97, s.98 - admission of tendency and/or coincidence evidence - multiple sexual offences - evidence from number of complainants - whether danger of concoction - whether concoction basis for excluding evidence
Held: evidence properly admitted - no reasonable possibility of collusion or concoction between complainants.

F
(2002) 129 A Crim R 126; NSW CCA [125] 9.4.2002
Evidence Act 1995 - s.97, s.98, s.101 - sexual offences against 4 school students by gym teacher - appeal against decision to join three complainants - Crown appeal against decision to order separate trial in relation to one complainant
Held: central issue whether evidence of each complainant admissible as tendency or coincidence evidence in relation to other complainants - principles and tests considered - appeals dismissed.

Lamb & Thurston
NSWSC [323] Dunford J 11.4.2002
Evidence Act 1995 - 97 - murder - Crown tendered evidence that L drinking earlier in day, with T and in aggressive mood
Held: evidence not tendency evidence but admissible as transactional evidence pursuant to O’Leary - not relationship evidence because aggression not directed towards victim

Joiner
NSW CCA [354] 28.8.2002
Evidence Act 1995 - 97 - murder - charged with assaulting his wife during argument - Crown led evidence from previous partners of violence
Held: evidence of significant probative value - evidence of inability to control anger and violent reaction to women in relationship powerful evidence to rebut claim no intent to harm - on issue of whether probative value outweighed prejudice followed WRC NSW CCA [210] 7.6.2002 which applied Pfennig - test should be whether there is a rational view of the evidence consistent with innocence - rational equals reasonable - propensity evidence must be such that, when added to all other evidence, would eliminate any reasonable doubt - evidence allowed

Baird
NSW CCA [460] 30.10.2002
Evidence Act 1995 s.97 - aggravated sexual assault - no inconsistency in verdicts - Markuleski applied - evidence to support complainant's evidence of tape having being used to tie her up during the assault that was presented by Crown
Held: no unfairness to accused - appeal dismissed

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.97 – drug supply - relationship between propensity evidence at common law and tendency evidence under Evidence Act - - admissibility of evidence of prior criminal conduct where not adduced for tendency purpose - where accused was subject of telephone intercepts said to reveal prior heroin supplies
Held: evidence admissible on basis it referred to a drug supply to occur within a few days, not on a broader basis re prior relationship of other drugs dealings - Crown expressly asserted evidence not to prove tendency and judge directed jury evidence not to be used for that purpose.

Andrews
NSW CCA [7] 6.2.2003
Evidence Act 1995 (NSW) s.97 - murder - appellant killed wife out of jealousy - evidence of previous incidents when appellant showed aggression motivated by jealousy allowed at trial
Held: appeal dismissed based on overwhelming evidence against appellant - Court referred to unsettled question of whether provisions in 97 and 101 that tendency evidence must have “significant probative value … substantially outweighing any prejudicial effect on the defendant” are to be interpreted according to their natural meaning or in accordance with Pfennig (1995) 182 CLR 461

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.97 - conspiracy to import
Held: just because evidence shows bad character does not mean it is inadmissible if relevant for some other purpose - followed Quach and Harriman (1989) 167 CLR 590

Symss
NSW CCA [77] 2.4.2003
Evidence Act s.97 - murder - robbery in company - evidence concerning co-accused's previous use of knives - statement concerning an alleged knife threat by co-accused against his sister - evidence not sufficiently probative and not wrongly excluded
Held: verdict reasonable - appeal dismissed.

Lumsden
NSW CCA [83] 3.4.2003
Evidence Act s.97 - ongoing supply of methylamphetamine to undercover police officer - evidence as to drugs found on appellant's premises two months after alleged offences was relevant and admissible - no more prejudicial than evidence establishing ongoing supply charge.
Held: appeal dismissed

Ellis
(2003) 58 NSWLR 700; 144 A Crim R 1; NSW CCA [319] 5.11.2003
Evidence Act 1995 (NSW) s.97 – break enter and steal offences – judge allowed joint trial of 11 counts on basis evidence of each offence would be admissible against other counts – unusual and consistent modus operandi used – 5 judge bench convened to settle conflict over interpretation of s.101 test – whether common law test of Pfennig (whether no rational view consistent with innocence of accused) applies to statutory formula that probative value of evidence must substantially outweigh prejudicial effect
Held: appeal dismissed - common law test (no rational explanation consistent with innocence) replaced by statutory formula (balance probative value against prejudicial effect) – Pfennig does not apply – Trial judge did not err in applying statutory test not common law test

Li
NSW CCA [407] 23.12.2003
Evidence Act 1995 (NSW) s.97 – detain for advantage and common assault – appellant threatened ex-wife in own unit – complainant fell from balcony in attempt to escape – serious injury – evidence of prior threatening and violent behaviour of appellant towards wife admitted
Held: appeal allowed – evidence should not have been admitted as tendency evidence – in relation to first count evidence did not show tendency to detain – in relation to second count probative value outweighed by prejudice
Held: (Dunford J – dissenting) – evidence admissible in relation to first count – do not need to show tendency to detain – sufficient to show tendency to act in violent way

Barton
NSW CCA [229] 8.7.2004
Evidence Act 1995 (NSW) s.97, 101 – Sexual offences against 7 young boys – joint trial held involving all complainants – evidence of each complainant relied upon as tendency evidence in support of other complainants – allegations of two complainants more serious than other complainants
Held: allowing appeal – applied Ellis – “the precautions concerning what was previously termed propensity and similar fact evidence do not cease to have validity. The aims of common law and statute are identical in the sense that they are directed towards safeguards against possible wrongful conviction.” – TJ erroneously considered evidence from all complainants together and failed to consider relevance and effect of fact that some allegations involved less serious conduct than others – counts involving more serious offences should have been separated

Cakovski
(2004) 149 A Crim R 21; NSW CCA [280] 19.8.2004
Evidence Act 1995 (NSW) s.97 – murder - appellant claimed self defence when victim threatened to kill him – TJ refused to admit evidence that victim had been convicted and served time for three murders committed in 1978 – murders related to drug trade – also declined to admit evidence of death threat made by victim during fight with third person earlier in evening
Held: allowing appeal - Per Hodgson JA – evidence relevant and admissible otherwise than as tendency evidence - made highly improbable account of appellant more likely – relevant to question whether reasonable possibility victim made threats – substantial probative value not outweighed by unfair prejudice - may not have passed tendency evidence test
Per Hulme J – evidence not admissible as tendency evidence – too old and insufficient detail given to allow comparison between earlier murders and behaviour on night of offence – was admissible on basis stated by Hodgson JA
Per Hidden J – using evidence to show reasonable possibility victim made death threats is tendency evidence – admissible as tendency evidence – significant probative value

Watkins
NSW CCA [164] 1.6.2005
Evidence Act 1995 (NSW), ss 97, 98 – defrauded body corporate as officer thereof – deposited cheques totaling over $2M into own account signed by one of the company directors – Crown tendered evidence of 37 counts of larceny as a clerk for which A convicted in 1985 and the similarities between the two – points of dissimilarity however overlooked – prejudicial effect outweighed probative effect – though very strong Crown case, but proviso not applied
Held: appeal allowed and retrial ordered

Section 98: The coincidence rule

Lock
(1997) 91 A Crim R 356 (NSWSC Hunt CJ at CL)
Evidence Act 1995 (NSW) s.98 stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbing of victim by accused.
Held: “significant probative value” means more than mere relevance but something less than substantial degree of relevance - important, of consequence - assessment of probative value will require assessment of circumstances surrounding fact in issue and circumstances surrounding tendency evidence - following Pfennig only if there is no rational or reasonable view of the evidence consistent with innocence will probative value outweigh prejudicial effect - test applies to both tendency and co-incidence evidence in this case not enough detail as to circumstances surrounding prior incidents to be satisfied of probative value.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.98 - importation of drugs - Crown sought to admit evidence of four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting the presence of the two co-accused in Sydney on previous four occasions
Held: evidence admitted - significant probative value substantially outweighing any prejudicial effect

White
NSW CCA [336] 20.10.1999
Evidence Act 1995 s.98 - child sexual assault - three complainants - evidence against first complainant admitted in case involving other complainants.
Held: no error in judge failing to direct jury they should not use coincidence evidence as tendency evidence - accused did not seek a direction - extent to which matters which have not played part in a trial should be brought to the attention of jury for purposes of telling them to exclude such matters should be approached with caution - direction adequate.

Phillips
NSWSC (Bell J) [1175] 17.12.1999
Evidence Act 1995 - ss.97, 98 - murder of infant child - 8m son found in cot with breathing difficulties - post mortem found cause of death either SIDS or induced asphyxia - Crown sought to lead evidence of previous deaths of two children and life threatening incidents involving hospital visits for 4 of 5 children - Crown argued proved death of third child caused by induced asphyxiation - tendency evidence showing accused tended to conduct herself in manner detrimental to children.
Held: no expert prepared to exclude hypothesis consistent with innocence for each incident - all incidents had possible innocent medical explanations - evidence did not exclude reasonable hypothesis consistent with innocence - evidence inadmissible

GLC
NSW CCA [90] 31.3.2000
Evidence Act 1995 - s.98 - sexual offences against two complainants - Crown sought to lead evidence of both complainants in relation to all counts.
Held: Crown conceded evidence did not satisfy ss.97 or 98 requirements - offences occurred 4-5 years apart - no striking similarities - 5 year age difference in complainants.

Martin
NSW CCA [332] 25.8.2000
Evidence Act 1995 - s.98 - sexual intercourse without consent - climbed into bed with sleeping woman in lodge and forced intercourse - Crown led evidence that appellant had tried to do identical thing to another woman 15-30 minutes earlier
Held: evidence admissible - probative because could rationally affect issue of whether appellant cared about consent of complainant.

Bell
NSW CCA [2] 1.2.2002
Evidence Act 1995 - s.97, s.98 - admission of tendency and/or coincidence evidence - multiple sexual offences - evidence from number of complainants - whether danger of concoction - whether concoction basis for excluding evidence
Held: Evidence properly admitted - no reasonable possibility of collusion or concoction between complainants.

F
(2002) 129 A Crim R 126; NSW CCA [125] 9.4.2002
Evidence Act 1995 - s.97, s.98, s.101 - sexual offences against 4 school students by gym teacher - appeal against decision to join three complainants - Crown appeal against decision to order separate trial in relation to one complainant
Held: central issue whether evidence of each complainant admissible as tendency or coincidence evidence in relation to other complainants - principles and tests considered - appeals dismissed.

WRC
(2002) 130 A Crim R 89’ NSW CCA [210] 7.6.2002
Evidence Act 1995 - s.98, s.101 - sexual offences by teacher against 2 school boys - lengthy delay - neither complainant knew each other - TEL made complaint to school but no further action - CPS commenced civil action reported in local paper - mother of TEL advised son of article and he contacted solicitors of CPS - admissibility of evidence of each complainant at trial of other complainant
Held: test under Pfennig (1995) 182 CLR 461 highly relevant to s.97, 98 and 101 - if first assume all other evidence leaves jury with reasonable doubt, propensity evidence must be such that, when considered with other evidence, there will be no reasonable view consistent with innocence of accused - propensity evidence must be such that, when added to other evidence, eliminates reasonable doubt - probative value of co-incidence evidence may arise from fact that 2 or more persons independently gave evidence of related events where it is improbable that they would have given accounts with such similarity unless accounts had foundation in fact - possibility of concoction or contamination must be removed - no error here in admitting evidence

Folbigg
NSW CCA [17] 13.2.2003
Evidence Act 1995 - s.98 - accused charged with murder of four infant children - each child died on separate occasions while in care of accused - medical evidence suggests asphyxiation as possible cause - application for separate trials rejected on basis evidence of each death admissible as coincidence evidence
Held: Pfennig (1995) 182 CLR 461 test continues to apply until High Court says differently - evidence on individual counts would not convict, but when evidence of
other deaths considered no other rational result than guilt

Ellis
(2003) 58 NSWLR 700; 144 A Crim R 1; NSW CCA [319] 5.11.2003
Evidence Act 1995 (NSW) s.98 – break enter and steal offences – judge allowed joint trial of 11 counts on basis evidence of each offence would be admissible against other counts – unusual and consistent modus operandi used – 5 judge bench convened to settle conflict over interpretation of s.101 test – whether common law test of Pfennig (whether no rational view consistent with innocence of accused) applies to statutory formula that probative value of evidence must substantially outweigh prejudicial effect
Held: appeal dismissed - common law test (no rational explanation consistent with innocence) replaced by statutory formula (balance probative value against prejudicial effect) – Pfennig does not apply – Trial judge did not err in applying statutory test not common law test

Mason
(2003) 140 A Crim R 274; NSW CCA [331] 17.12.2003
Evidence Act 1995 s.98, 101 – armed robbery – evidence of other robberies and theft offences committed by appellant tendered as co-incidence evidence
Held: evidence correctly admitted – circumstances of offence substantially and relevantly similar – probative value of evidence extremely high and substantially outweighed any prejudicial effect – Ellis followed – statutory balancing test of weighing probative value against prejudicial effect

Evidence Act 1995 (NSW) s 55 – Manslaughter, Intentionally inflict GBH, 3 x Murder – Mother killed four babies over ten years – Suffocated each child in spontaneous burst of anger – Earlier attack on second child caused blindness – Whether separate trials should have been ordered for each charge – Whether probative value of evidence of each charge outweighed by prejudice
Held: dismissing appeal – individual incidents constituted co-incidence evidence although not independently proved – substantial similarities – significant probative value – no basis for separate trials

Watkins
NSW CCA [164] 1.6.2005
Evidence Act 1995 (NSW), ss 97, 98 – defrauded body corporate as officer thereof – deposited cheques totaling over $2M into own account signed by one of the company directors – Crown tendered evidence of 37 counts of larceny as a clerk for which A convicted in 1985 and the similarities between the two – points of dissimilarity however overlooked – prejudicial effect outweighed probative effect – though very strong Crown case, but proviso not applied
Held: appeal allowed and retrial ordered

Section 99: Requirements for notices

Willoughby
NSWSC [751] Greg James J 31.7.2000
Evidence Act 1995 (NSW) s.99 - murder – admissibility of tendency evidence
Held: evidence admissible – failure of Crown to give reasonable notice means jury discharged.

A.N.
[2000] 117 A Crim R 176; NSW CCA [372] 9.11.2000
Evidence Act 1995 (NSW) s.99 reg 6 - sexual offences - Crown led evidence of uncharged sexual acts - notice failed to comply with regulations - failed to identify evidence to be called and give other details.
Held: failure of accused to complain about notice at trial does not constitute waiver unless accused has been appraised of rights and advised to waiver those rights by legal representative [s.190(2)(a)] and Court is satisfied accused understands consequences of waiver [s.190(2)(b)]
Held: tendency evidence not properly admitted as notice given by Crown to defence was defective and did not comply with reg 6 for first or second trial - notice did not identify evidence which would be called by Crown, nor provide information required to be provided - no application by Crown to dispense with notice under s.100.

AB
NSW CCA [496] 15.11.2001
Evidence Act 1995 (NSW) s.99 - sexual offences - whether notice complied with requirements
Held: sufficient to comply with regulations if notice contains description of evidence or refers to readily identifiable document that contains description of nature and substance of evidence intended to be tendered

Andrews
NSW CCA [7] 6.2.2003
Evidence Act 1995 (NSW) s.99 - murder - appellant killed wife out of jealousy - evidence of previous incidents when appellant showed aggression motivated by jealousy allowed at trial
Held: inclusion of substance of evidence in Crown brief when served sufficient to comply with notice requirements

Harker
NSW CCA [427] 2.12.2004
Evidence Act 1995 (NSW) s.99 – sexual assault – appeal against refusal of judge to dispense with notice requirements – attempt to tender evidence from male witness as to sexual abuse by accused against male witness at same time as current allegations
Held: allowing appeal - judge required to consider s.192(2) – two most important considerations are probative value of evidence and prejudice caused by failure to give proper notice – fact that witness recalling old events irrelevant – no basis here for finding prejudice

Section 100: Dispensing with requirement for notice

Harker
NSW CCA [427] 2.12.2004
Evidence Act 1995 (NSW) s.100, 101 – s.5F(3A) Crown appeal – respondent charged with multiple sexual assault offences against child – refusal of TJ to admit evidence of allegations of sexual abuse of second male as tendency evidence – found prejudicial effect outweighed probative value – Crown appeal against decision remitted to TJ to consider failure to comply with notice requirements – TJ refused to dispense with notice requirements
Held: allowing appeal – two issues to be determined under s.100(1) – probative value of evidence and prejudice to opposing party caused by failure to give notice – failure to properly consider prejudice to respondent – took into account irrelevant considerations – fact that witness giving evidence of events occurring 8-9 year ago irrelevant – erroneously applied test under s.137
Earlier decision rejecting tendency evidence also cannot stand - no evidence of concoction – sufficient similarity - failed to consider accumulation of evidence instead of individual allegations – fact that witness alleging uncharged criminal conduct irrelevant – failed to give adequate reasons

Section 101: Further restrictions on tendency/coincidence evidence