Tendency, Coincidence & Joint Trials

1 tendency , Coincidence & Joint Trials 2018 Public Defenders Conference Tim Gartelmann SC DCJ Carly Berrigan LLB(Hons) 17th March 2018 1 TABLE OF CONTENTS _____ INTRODUCTION 2 tendency 3 Overview 3 Evidence Act 1995 provisions 4 Notice 5 Section 97 determination 5 Significant probative value 5 Considerations 7 Section 101 determination 15 Prejudicial effect 15 Directions 17 Standard of proof 18 Anti- tendency 18 Coincidence 20 Overview 20 Evidence Act 1995 provisions 21 Notice 22 Section 98(1)

2 Determination 23 Significant probative value 23 Considerations 27 Section 101 determination 29 Prejudicial effect 29 Directions 30 Standard of proof 30 Concoction & contamination 30 Joint Trials 31 Criminal Procedure Act 1986 provisions 31 General principles 31 2 INTRODUCTION [1] tendency evidence and Coincidence evidence are among the more complicated and controversial areas of evidence law in criminal cases. [2] The issues that may arise in connection with tendency and Coincidence evidence are many and varied.

3 An examination of the full range of issues is beyond the scope of this paper. This paper seeks rather to address the central elements of the tests for admissibility and use of tendency and Coincidence evidence. [3] The High Court in IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen (2017) 92 ALJR 52 determined a number of important questions relating to the tests for admissibility and use of tendency and Coincidence evidence. This paper therefore extracts a number of statements of principle in the judgments in these cases.

4 [4] An appreciation of the processes of reasoning underlying tendency evidence and Coincidence evidence is necessary for a sound understanding of the operation of the tests for their admissibility and use. This paper extracts a number of statements of principle from decisions of intermediate appellate courts regarding these processes of reasoning. [5] Some particular issues frequently arise in connection with questions of admissibility and use of tendency evidence and Coincidence evidence.

5 This paper attempts to summarise the ways in which appellate courts have approached some of the more commonly arising issues. [6] Finally, decisions regarding admissibility and use of tendency and Coincidence evidence often have ramifications for whether Trials of multiple counts will be Joint or separate. This paper briefly addresses when Joint or separate Trials of multiple counts may be appropriate following determinations regarding the admissibility and use of tendency and Coincidence evidence.

6 3 tendency Overview [7] Evidence known as tendency evidence under the Evidence Act 1995 was known as propensity evidence at common law. [8] The provisions of the Act are the primary source in considering questions of admissibility of such evidence, rather than the pre-existing common law: see IMM at [35]. However, the reasoning process underlying use of tendency evidence under the Act is cognate with that underlying the use of propensity evidence at common law. [9] The common law treated propensity evidence as a form of circumstantial evidence: see Pfennig v The Queen (1995) 182 CLR 461 at 482-3.

7 [10] In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359]-[360], the Court (Bathurst CJ; Hoeben CJ at CL; Simpson J) described the reasoning process underlying the admission of tendency evidence as follows: tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency , it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings.

8 tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. The process of reasoning is: on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; it can therefore be concluded or inferred that the person had a tendency to act in that way; by reason of that tendency , it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency .

9 Alternatively: on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind; it can therefore be concluded or inferred that the person had a tendency to have that state of mind; by reason of that tendency , it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency . tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant 4 occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.

10 [11] In Hughes at [16], the majority (Kiefel CJ, Bell, Keane and Edelman JJ) summarised the reasoning process as follows: The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind or to act in a particular way to the likelihood that the person had the particular state of mind or acted in a particular way on the occasion in issue. [12] Gageler J (in the minority) summarised it as follows (at [70]-[71]): Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: 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.