NSW Bill to Amend Admissibility of Tendency and Coincidence Evidence In Response To Royal Commission

On 25 February 2020, the Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) (“the Bill”) was introduced to the Legislative Assembly by Attorney General Mark Speakman. The Bill proposes a number of amendments to Part 3.6 of the Evidence Act 1995 (NSW) (“the Act”), in relation to tendency evidence and coincidence evidence admissible in civil and criminal proceedings.

The Bill contains reforms in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”). The Royal Commission was a five year inquiry which investigated child sexual abuse in an institutional context, and in its conclusion made 85 criminal justice recommendations. The Royal Commission was discussed in an earlier Timebase article.

The Bill has passed the Assembly without amendment, and is yet to be introduced into the Council.

Tendency and Coincidence Evidence

Tendency evidence is evidence that shows that a person has or had a tendency to act in a particular way, or to have a particular state of mind, through the person’s:

• Character,
• Reputation, or
• Conduct.

Coincidence evidence is evidence that shows that a person committed an act or had a particular state of mind on the basis that there are two or more events that occurred, and in taking into account the similarities of the events or the circumstances in which the events occurred, it is improbable that the events occurred coincidentally.

Under Part 3.6 of the Act, tendency and coincidence evidence is inadmissible unless reasonable notice is given and the evidence satisfies tests set out in the Act. The two limbs of the test for admissibility are:

1. The evidence must have significant probative value
2. Where the evidence is presented by the prosecution against a defendant, then the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant

These tests are significant, particularly in cases where the defendant is alleged to have abused more than one child. The Royal Commission in its final report found that:

1. The risk that unfair prejudice arose from tendency or coincidence evidence was overstated
2. The existing tests for admissibility unnecessarily precluded evidence from being admitted in criminal proceedings
3. Application of rules to tendency and coincidence evidence unnecessarily prevented joint trials from being held

Amendments under the Bill

The Bill proposes greater admissibility for both tendency and coincidence evidence in criminal proceedings for child sexual offences.

In regards to the first limb of the test, the Bill proposes the addition of a new provision in determining significant probative value in proceedings that involve child sexual offences. Under the proposed section 97A, tendency evidence regarding a defendant’s sexual interest in children or about a defendant’s actions based on their sexual interest in children, will be presumed to have significant probative value. This presumption, however, can be rebutted if the court finds sufficient grounds to determine that the evidence does not have significant probative value. Sufficient grounds are not further specified, but the proposed section 97A (5) notes seven matters that the court cannot take into account in determining the probative value of tendency evidence, unless there are exceptional circumstances.

With the second limb of the test, the Bill proposes a change in the wording of section 101 (2) of the Act. Clause 4 of Schedule 1 of the Act proposes:

In first changing the test from ‘substantially outweighs’ to simply ‘outweighs’, the Bill seeks to address the disproportion in assessing the value of the evidence against the prejudicial effect on the defendant. This imbalance currently leans towards the exclusion of the evidence. Secondly, in changing the test from ‘prejudicial effect’ into ‘the danger of unfair prejudice’, the Bill aims to align the test with the language of other evidence exclusion provisions in the Act.

Additionally, the Bill also proposes the following amendments to the Act:

• Common law or equity principles preventing or restricting admissibility will not apply to Part 3.6 of the Act
• In determining the probative value of tendency or coincidence evidence, a court is not to consider the possibility that the evidence may be the result of collusion, concoction, or contamination
• Evidence from two or more witnesses who claim that they are victims of the defendant to be categorised as a type of coincidence evidence

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) and supporting documents available from TimeBase’s LawOne Service