Tendency Evidence - Bench Notes.doc

Tendency Evidence - Bench Notes.doc - 4.18 – Tendency...

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4.18 – Tendency Evidence 1 4.18 – Tendency Evidence___________________________________________________1 Overview_____________________________________________________________2 What is “Tendency Evidence”?___________________________________________2 How do “tendency evidence” and “coincidence evidence” differ?__________________2 How do “tendency”, “relationship” and “context” evidence differ?________________3 Determining whether evidence is “tendency evidence”___________________________4 Admissibility of Evidence Capable of Proving a Tendency_____________________4 Admitting evidence in order to prove a tendency________________________________4 Admitting evidence for another purpose_______________________________________6 Uses of Tendency Evidence______________________________________________6 Demonstrating an improper sexual interest____________________________________7 Tendency Evidence and Multiple Sexual Complainants__________________________8 Directions About Tendency Evidence and Reasoning_________________________9 Directions where tendency evidence adduced by prosecution______________________9 Standard of proof_______________________________________________________________10 Directions where tendency evidence adduced by the accused about a co-accused____11 Directions where evidence is not admissible as tendency evidence_________________11 Timing of the Charge__________________________________________________13 1 This document was last updated on 27 March 2019.
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Overview 1. Part 4, Division 2, of the Jury Directions Act 2015 regulates jury directions on ‘other misconduct evidence’. This is defined as: a) Coincidence evidence, as defined in the Evidence Act 2008 ; b) Tendency evidence, as defined in the Evidence Act 2008 ; c) Evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; d) Evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed ( Jury Directions Act 2015 s26). 2. This topic examines tendency evidence as a form of ‘other misconduct evidence’. What is “Tendency Evidence”? 3. “Tendency evidence” is evidence that is used to prove that a person has or had a tendency to: Act in a particular way; or Have a particular state of mind ( Evidence Act 2008 s97). 4. The following types of evidence may, in certain circumstances, 2 be used to prove that a person had such a tendency: Evidence of a person’s character; Evidence of a person’s reputation; Evidence of a person’s conduct; or Evidence of a tendency that a person has or had ( Evidence Act 2008 s97). How do “tendency evidence” and “coincidence evidence” differ? 5. Care must be taken to distinguish “tendency evidence” from “coincidence evidence” ( R v Nassif [2004] NSWCCA 433; Gardiner v R [2006] NSWCCA 190; KJR v R [2007] NSWCCA 165). 6. “Tendency evidence” is evidence that allows the jury to reason that: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue ( Hughes v The Queen (2017) 92 ALJR 92 at [70] per Gageler J). 2 See “Admissibility of Tendency Evidence” below.
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7. “Coincidence evidence” is evidence which uses the improbability of two or more events occurring coincidentally to prove that a person performed a particular act or had a particular state of mind ( Evidence Act 2008 s98).
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  • Spring '17
  • Rosen
  • Human Sexuality, Human sexual behavior, Evidence law, Tendency Evidence1

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