Have difficulty telling the difference between tendency and coincidence evidence?
You’re not alone.
The last time I wrote a paper on tendency and coincidence evidence (when it was still known as similar fact and propensity) it took me so long that by the time I had finished it the law had changed again. With that experience in mind, I’m not going to try for a comprehensive discussion of the topic the day before we wind up for the year. But I do want to mention BP v R; R v BP  NSWCCA 303 before it gets lost over the summer break.
The appellant in BP v R was convicted at trial of indecently assaulting his daughter when she was a child in the 1970s and doing the same to one of his grand-daughters in recent years. He was acquitted of other counts, including charges of indecently assaulting another one of his grand-daughters.
The Crown appealed the sentence. The appellant appealed his conviction. He asserted three grounds of appeal:
- 1. There was a miscarriage of justice because His Honour did not order separate trials in respect of the counts as to the Complainants 2. There was a miscarriage of justice as a result of His Honour’s directions in respect of Tendency/Co-incidence Evidence 3. The Learned Trial Judge erred in his direction as to the risk of concoction.
As in Victoria, the question of whether separate trials should be ordered is really about the cross-admissibility of the evidence of each complainant. If the evidence was admissible for a tendency or coincidence purpose the charges would naturally be heard together. If the evidence was not cross-admissible it would be better for the charges relating to each complainant to be split. Counsel for the accused sought separate trials but that application was rejected. The Court of Criminal Appeal upheld that decision.
Hodgson JA summarised one aspect of the first ground this way [at 100]:
On the question of the probative value of evidence relied on as tendency or coincidence evidence, [counsel] relied on O’Keefe v R  NSWCCA 121, and on CGL v DPP  VSCA 26. He submitted that the real assertion made by the tendency and coincidence notices was that the appellant had a sexual interest in young children, and as O’Keefe and CGL showed, this was insufficient for the probative value necessary for tendency or coincidence evidence. The limitation to family members did not significantly change the position, and in any event was artificial, because originally there were non-family complainants. Many of the further particulars were just matters of opportunity and how things allegedly happened to occur, and many applied only to some or only one of the complainants. The probative value of the evidence as tendency or coincidence evidence was small, and the prejudicial effect enormous.
Hodgson JA rejected that submission. In doing so, he helpfully restated the process of evaluating the admissibility of tendency evidence – at least in NSW [beginning at 106, Price and Fullarton JJ agreeing]:
Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li  NSWCCA 407 at , R v Cittadini (2008) 189 A Crim R 492 at  – .
To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171 at 175-6, R v Ford  NSWCCA 306 at  and , R v PWD  NSWCCA 209 at . The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at .
It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at , , PWD at -. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.
The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski (2002) 56 NSWLR 182 at . An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis (2003) 58 NSWLR 700 at - . If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at .
One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby  NSWCCA 261 at , R v OGD (No 2) (2000) 50 NSWLR 433 at , . The onus is on the Crown to negate the “real chance” of concoction: OGD at , R v F (2002) 129 A Crim R 126 at .
Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN  NSWCCA 413 at , OGD at  – .
(The admissibility of tendency evidence seems much easier in NSW than Victoria, particularly when compared with Victorian decisions from early in the year like CGL, PNJ v DPP  VSCA 88 and NAM v R  VSCA 95. The Victorian Court of Appeal frequently references the pre-UEA judgment of Winneke P in R v Papamitrou  VSCA 12 when saying tendency evidence ought to be strikingly similar in nature if it’s to have significant probative value.)
The Court in BP v R said it distinguished CGL on its facts. Exactly what those facts were is elusive and not explicitly spelled out in the judgment.
Tendency or coincidence?
The second ground of the appeal advanced that the trial judge’s directions to the jury confused s 97 and s 98.
The direction complained of was reproduced [in part] at 93,
93 In the course of summing up to the jury, the trial judge gave the following directions concerning tendency and coincidence evidence:
… You have evidence in the case in front of you that the Crown relies upon from each of the complainants that the accused committed each of those offences. The evidence that is before you, the Crown says, reveals a pattern of behaviour that reveals that the accused has a tendency to act in a particular way or to have a particular state of mind, namely, that he has a preoccupation. Perhaps you can use a stronger word, even an obsession with young prepubertal females and their sexual organs, particularly their vaginal areas.
Now you may look at the allegations and it is ultimately a matter for you of course to determine whether on the evidence that you accept the accused is found to have such a tendency. You may consider this evidence but if you are satisfied that the accused in this case did have such a state of mind you may use that fact in considering whether the accused committed the offences charged. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one piece of misconduct that he is therefore a person of bad character and for that reason must have committed all the offences. That is not the purpose of the evidence at all. The evidence of the accused having such a state of mind can only be used in the way the Crown asks you to if you are firstly satisfied of that evidence. This is of the existence of such a tendency or state of mind beyond a reasonable doubt.
There is another aspect of this and it is this. Again, the accused is charged with the offences there on the indictment. And you have before you evidence that the Crown relies upon in establishing that he committed those offences. However, you also have before you evidence concerning the manner in which those offences were committed and these offences were on the Crown case committed very much in the family context, either within the family home or in the immediate surroundings of the family home, sometimes near to other members of the family and involved, in a number of instances on the Crown case, the young child involved being told not to tell anyone that if they did there would be consequence that he might be sent to gaol or that they would be to blame and that these circumstances surrounding the offences have a remarkable similarity. That evidence is before you because sometimes there may be such a substantial similarity between different acts and the circumstances in which they occur, that a jury may be satisfied that the person who did one act must have done the others. That is to say, there is such a substantial similarity between the acts and the circumstances in which they occurred but because of the improbability of the events occurring coincidentally, it establishes that the accused committed the act that is the subject of the offence because coincidence is a very unlikely explanation for the substantial similarity.
Earlier in my summing-up I mentioned a couple of instances where the accused have said in the tractor incident that the gearstick when drawn back would come into contact with the child’s crotch which would be an innocent explanation and where he and one of the complainants was walking to the far paddock and put his arm around her, that there may have been either an accidental contact or there may be an innocent explanation for her allegation that her breast was squeezed on that occasion. You may, if you find beyond a reasonable doubt that there is substantial similarity in the allegations referred to here, utilise that in determining whether you are satisfied that such offence is not the result of coincidence or innocent explanation. So, the evidence of the pattern of behaviour can only be used in the way the Crown asks you to, if you are firstly satisfied that the accused did the other acts beyond reasonable doubt.
There was an obvious conflation of the two types of reasoning. Counsel for the appellant relied on another Victorian case, R v DCC (2004) 11 VR 129, where Callaway JA said [at 7],
It was necessary for the jury to understand the purpose for which the evidence on counts relating to one complainant was relevant to counts relating to the others. In particular, it was necessary for them to understand that they could reason from the improbability of coincidence, if they were satisfied beyond reasonable doubt that there was no collusion, but they were not to reason that, because the applicant was guilty in relation to one complainant, he was the kind of person who was likely to have abused the other complainants too.
The difference between probability reasoning and propensity reasoning is not a matter of words or artificiality. It is a different train of thought. It is one thing to say that the account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar. (Such reasoning could just as well be used in relation to armed robberies as sexual offences.) It is a different thing altogether to reason that, because the evidence of one witness is accepted in relation to offences committed against her, the accused is the kind of person who is likely to have committed similar offences against other complainants, ie, in the present context, to conclude that he is a paedophile. As I have said, the former chain of reasoning is permitted but the latter is not.
In the present case therefore it was necessary to warn the jury against propensity reasoning in relation to the charged acts as well as the uncharged acts. It was necessary to do so in relation to the charged acts partly because there were multiple complainants but also because the evidence relating to the charged acts was relied on as similar fact evidence.
Hodgson JA observed [at 132]:
In considering this passage, it is to be kept in mind that there was no provision similar to s 97 of the Evidence Act operating in Victoria until 2008, and that while coincidence reasoning was available to the extent permitted by common law, propensity or tendency reasoning was not. Also, the coincidence relied on in DCC was the coincidence of complaints of similar sexual assaults by each of three stepdaughters; whereas in the present case, the coincidence relied on was not that of allegedly similar complaints by different persons, but of allegedly similar acts of the appellant.
Accordingly, in my opinion, there was not in this case the sharp distinction between tendency and coincidence reasoning identified in DCC. Tendency reasoning was permissible in this case, and although in my opinion the similarities between the acts alleged against the appellant were not so striking that satisfaction as to the occurrence of some could directly make it significantly more likely that the appellant committed others, they were such that the commission of some could evidence a tendency and thereby increase the probability that the appellant committed others.
The final point was the extent to which the Crown was obliged to exclude the possibility that the witnesses had spoken with one another and concocted similar accounts, deliberately or inadvertently, undermining the value of the tendency evidence. The Court was clearly satisfied that the risk in this case was low.
Since the repeal of s 398A of the Crimes Act 1958 the effect of the possibility of witness collusion on the admissibility of tendency evidence has been uncertain in Victoria. Hodgson JA tentatively expressed this view [at 123],
In my view, it is not a risk of any contamination whatsoever that would necessarily require the exclusion of evidence: it must be a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality. I accept that, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence of other witnesses should not be admitted as tendency evidence. However, the risk of unconscious influence as to incidental details would not in my view necessarily require the evidence to be excluded.