12. Tendency and Coincidence
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.
Continued on page 2
Continued
•
Although the test in s101(2) appears to prefer the traditional
'balancing' test favoured by McHugh J in Pfennig, courts applying this
provision have generally imported the stricter approach of the majority
of the High Court in Pfennig¸ justified on the argument that the high
level of probative value required by that approach will always be
necessary to 'substantially outweigh' the inevitable prejudicial effect
of such evidence: R v NJF (unrep, CCA NSW, 5/6/97).
• This
section doesn't apply if prosecution uses tendency and coincidence
evidence to counter tendency and coincidence evidence adduced by the
defendant.
• The more specific the criminal propensity, the
more likely it is to be probative of a particular fact in issue in the
instant case and the more likely it is to be admissible
• The trial judge will explore the scope for admissibility under this section on a voir dire without the jury present.
R v Ellis [2003]
Facts: This case involved a man charged with 11 counts of breaking and entering in retail shops in country NSW.
•
The similarities were that they were retail shops, tended to stock
cigarettes and other things there was a particular modus operandi of
the way the glass panel was removed in all the shops. This could only
be done by someone who knew the industry.
Issue: Could evidence from one break and enter be used for another charge? this was both tendency and coincidence evidence.
Held: The judge allowed evidence as both tendency and coincidence evidence.
• Spiegelman CJ: found McHugh J’s reasoning in Pfennig compelling
•
The stricter majority Pfennig test does not apply, the statute test
applies continued application of the ‘no rational view’ test is not
consistent with a statutory test which expressly requires a balancing
process this process tilts in the same direction as that which the
joint judgment in Pfennig suggests, but by use of different
terminology, i.e. the word ‘substantially’ has been added into the act.
(s101(2))
• s101 calls for a balancing exercise which can only be
conducted on the facts of each case. It requires the court to make a
judgment, rather than to exercise a discretion. The “no rational
explanation test” focuses on only one of the two matters to be balanced
– the evidence either meets the test or it does not. Even if there is a
small risk of prejudice, the prosecution cannot use the evidence unless
it satisfies the stringent no rational explanation test.
•
There may well be cases where, on the facts, it would not be open to
conclude that the probative value of particular evidence substantially
outweighs its prejudicial effect, unless the “no rational explanation
test” were satisfied.
• It may be concluded that, even
after the decision in Ellis, NSW courts will continue to apply Hoch
principles that is, if there is a reasonable possibility of collusion
or contamination, the evidence will be excluded, because that risk
deprives the evidence of its probative value (R v Colby [1999])
W v The Queen [2001] (also adopts the approach of McHugh J in Pfennig)
Facts:
Appellant was convicted of four offences of a sexual nature committed
on three complainants aged between 10 and 16 years all 3 girls worked
in the general store, and the appellant ran this general store.
Held:
There is nothing in the Evidence Act that says that for the purpose of
deciding, pursuant to s101, whether probative value substantially
outweighs likely prejudice, the trial judge must be convinced beyond
reasonable doubt as a matter of fact that, if the challenged evidence
is accepted, there is no reasonable hypothesis consistent with
innocence.
• According to the court, the dissenting judgement of
McHugh J provides strong reasons for not reading the above implication
into the Evidence Act.
Jacara v Perpetual Trustees (2000) (Example of civil proceedings)
Facts:
Evidence was tendered on behalf of the appellant, Jacara, in support of
its claim that the respondent, Perpetual, engaged in misleading or
deceptive conduct by misrepresenting the attributes of the Parkmore
Shopping Centre of which Perpetual was the proprietor
• The
excluded evidence concerned representations allegedly made by
Perpetual’s agent to other persons contemplating entering into leases
of shops within the Centre these representations were varying
estimates by the agent as to how profitable these other persons could
expect their businesses in the Centre to be.
• The trial judge did not allow these representations into evidence.
Held:
It was well open to the trial judge to conclude that the various
accounts differed among themselves to such an extent that the evidence
could not be said to have significant probative value on the facts and
issues.
• However, the court said that this was not to suggest
that the only basis for the admissibility of tendency evidence under
s97(1) of the EA, is if the evidence reveals striking similarities or
unusual features the conclusion the court reached have reached merely
reflected the fact that the trial judge was entitled to take the view
(in the circumstances of the case) that the evidence lacked probative
value for the purposes of s97(1).