Tendency
Also known as Propensity, tends to show a disposition of a person, that they act or tend to act in a certain way.

Coincidence
Also known as similar fact evidence, shows that conduct on other occasions is so similar to conduct with which the accused is charged

Pfennig v R (1994) (Seminal Case before EA: the use of tendency and coincidence evidence together  evidence after the crime for similar fact and tendency evidence)

Facts: Michael Black aged 10 disappeared from the Sturt Reserve in South Australia.
•    His body was not discovered. His bike and clothes were found near river, stacked in a way that looked like he went swimming in the river. Pfennig was suspected of being in the area. There was circumstantial evidence that P was seen talking to MB. The day before the event he asked about a place where he could swim naked. He had conversation with two young boys who he invited to his Comby van.
•    2 possibilities: (1) MB went swimming and drowned (2) MB abducted (presumably for a sexual purpose)
•    12 months passed and a boy, H, was kidnapped by Pfennig and sexually assaulted  H escaped and told the cops, Pfennig pleaded guilty to charges of rape and abduction of 13-year-old boy (H), who escaped.
•    This boy’s clothes and bicycle had been left in a place very similar to that of Michael Black’s. A trial was conducted and there was a voir dire to determine the admissibility of the H evidence.
Issue: Whether the evidence of the subsequent charge and circumstances was admissible as an exception to the tendency and coincidence rule  to show that Pfennig had a tendency to abduct and sexually assault young boys

•    Trial Judgment:
(1) Black didn't drown;
(2) Black was kidnapped for murder/sex as there was no ransom demanded.
(3) If he was abducted he would've been murdered. [These facts were used as tendency and similar fact evidence. The TJ applied the test in Hoch to these facts and found that the H evidence proved the abductor's identity.

Held: Majority followed the Hoch TEST (no reasonable explanation)
•    The court found that there was no reasonable explanation for Black's death in a way other than that contended by the prosecution
•    “the basis for the admission of similar fact and tendency evidence lies in its possessing a particular probative value or cogency (a requirement for similar fact evidence) such that, if accepted it bears no reasonable explanation other than the inculpation of the accused in the offence charged (the ‘no reasonable explanation’ test). In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than supporting an inference that the accused is guilty of the offence charged.”
•    Propensity is not admissible if it shows only that accused has disposition or was sort of person to commit a crime, but if it is relevant in some other way that is if it tends to show that the accused is guilty of the offence charged then it will be admissible  it requires a strong degree of probative force transcending mere criminality and requires the ‘no reasonable view’ test.
•    The majority view was that only if the ‘no reasonable explanation’ test was satisfied can one ‘safely conclude that the probative force of the evidence outweighs its prejudicial effect.’
•    Similar Fact:  The evidence needs
to have a high level of cogency  often that high level of cogency is found in the striking similarity, underlying unity or signature pattern common to the incidents disclosed by the totality of the evidence.
•    The court held in this case that although the evidence falls short of being precisely the same, there are other factors present which indicate that there is very considerable cogency   judge had to regard evidence that it was an area where searches were conducted and bodies were normally found; there was evidence suggesting that the place where he left bike was not where he would go alone, he didn’t like swimming alone; his favourite spot was near by; he didn’t take swimming clothes with him; other people he knew were swimming in the area where he left his clothes and he would have swam with them; he was a competent swimmer.

McHugh J in dissent:  He rejected the no reasonable explanation test as it begins with an assumption of guilt of the accused - preferring a traditional balancing test, where the probative value must outweigh its prejudicial effect.
•    “The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.”
•    In some cases, the risk of an unfair trial might be so high that the probative value of the evidence must be so cogent so that the “no rational explanation” test of the majority may be required in order to satisfy the balancing test. E.g. where the prosecution relies entirely on propensity reasoning.

Hoch v The Queen (1988) (Before EA: similar fact evidence is inadmissible if concocted.)
Facts: Hoch was a student teacher at a boys’ home charged with three counts of sexual assault on three boys.
•    Each boy gave evidence of an indecent dealing in circumstances strikingly similar to the others  two of the boys were brothers and the third was a friend of one of the brothers.
•    Here there were similarities in the allegation  they were all inmates at a boys home, they were all aged 10-13, all incidents involved playing with the penis, two involved incidents in the shower, in two of them he used similar words, they all occurred within a 6 week period.
•    There was evidence that the boys had an antipathy to the accused which may have been unrelated to any sexual act  they also had opportunity to concoct their stories, and the stories were strikingly similar.
Held:  the charges should not have been heard together because the evidence admissible on each was not admissible on the others.
•    Per Mason CJ, Wilson and Gaudron JJ  the admissibility of similar fact evidence in cases involving allegations of sexual offences against several persons depends on that evidence having a probative value which is absent if the evidence is reasonably explicable on the basis of concoction.
•    Per Brennan and Dawson JJ  Test: Circumstantial evidence has probative value only if it bears no reasonable explanation other than the happening of the events in issue  here the court held the possibility of concoction destroys the probative value of the evidence which is a condition precedent to its admissibility.
•    Under the ‘no reasonable explanation’ test, evidence will not be admissible where there is a possibility of concoction or contamination  admissibility depends on the evidence having the quality that it is not reasonably explicable on the basis of concoction.

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