Evidence relating to the propensities of a defendant is generally disallowed in court proceedings, unless it relates solely to the credibility of a witness or has very high probative value. This is because such evidence can have a prejudicial effect. Under the UEL, this sort of evidence is divided in to tendency evidence and coincidence evidence.

 

Tendency evidence is evidence of past events which relates to the character, reputation or conduct of the defendant. Coincidence evidence relates to two or more events occurring with improbable similarities. The thrust of these two types of evidence is that the person implicated in these occurrences is likely to have done the same thing again in the current matter before the court.

 

Assessing Probative Value

Tendency and coincidence will be admissible if its probative value is above a certain threshold. The probative value of the evidence is determined, first, by assuming the witness is honest, as honesty is another question. Consideration is given to whether the witness’ evidence is accurate and not mistaken and not contaminated by the observations and views of other interested parties. Courts then are interested in similarities in case facts showing a repeated pattern of conduct or motive and the number of past instances. In the end the question is to what extent the evidence could assist the court in determining the probability of an alleged fact. Furthermore the connection drawn between the defendant by means of their past acts, and the facts alleged against them must be considered in the light of competing interpretations which may explain the facts in a manner inconsistent with the plaintiff’s or prosecution case.[1]...

 

This exception arises to admit tendency or coincidence evidence where there is significant probative value. This means something more than mere relevance alone, but it need not be substantial. Therefore the bar to admission is somewhat low. There appears, however, to be no greater consensus than this as yet.

 

Section 101 provides additionally that in criminal proceedings tendency evidence cannot be used unless its probative value outweighs its prejudicial effect. A prejudicial effect arises where the judge or jury makes a decision on an emotional basis rather than a logical one.

 

 

The Tendency Rule

Tendency evidence relates to previous actions or omissions which may demonstrate the character, reputation or patterns of conduct of a person, or a tendency that a person has, or has had. Under Section 97, tendency evidence is inadmissible, unless it is of significant probative value, and notice has been given to the court beforehand of the intention to adduce it.

 

The Coincidence Rule

Coincidence evidence is evidence that two or more events occurred where there are similarities in the events and/or surrounding circumstances. Such evidence is brought with the assertion that it is unlikely that the similar events occurred by mere coincidence.

 

Coincidence evidence is inadmissible as per section 98, unless it has significant probative value and notice has been given to the court. Probative value here, is also to be determined the same way, except that the process for each fact in evidence can involve the consideration of evidence to establish the coincidence. The threshold level of probative value is also the same.

 

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[1] CV [2014] VSCA 58.

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All statutory sections from unspecified Acts, are sections from a model Act of the Commonwealth Parliament as described on the first page of this chapter, and should be replicated as described in each of the related Acts of each State and Territory. (Jurisdiction to regulate the rules of evidence exists in the States and Territories and not in the Commonwealth).

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