NT Bill To Reform Evidence Law Tendency and Coincidence Rules

Thursday 26 November 2020 @ 2.10 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Evidence (National Uniform Legislation) Amendment Bill 2020 (NT) (the Bill) was introduced into the NT Assembly on 12 November 2020 by the Attorney General, Ms Uibo. According to the Attorney General, the Bill is intended "to put measures in place to support victims of crime ... to ensure that the justice system is operating effectively and efficiently".

The key purpose of this Bill is described in the explanatory speech as being:

". . . to amend the tendency and coincidence provisions in the Evidence (National Uniform Legislation) Act 2011 (the Act). The Act adopts the national uniform evidence legislation similar to other jurisdictions such as Victoria and New South Wales."


The Bill proposes amendments which are made in response to the Royal Commission into Institutional Responses to Child Sexual Abuse, (the Commission) a five year inquiry documenting the experiences of people affected by child sexual abuse in institutions. Over 1,200 witnesses gave evidence regarding child sexual abuse including their experiences with the criminal justice system. The criminal justice part of the report of the royal commission made 85 recommendations to reform the criminal justice system in the way it charges, prosecutes perpetrators and treats child sexual assault victims.

The proposed Bill is the Northern Territory Government’s response to seven of the recommendations, being recommendations 44–47 and 49–51 of the of the Commission's Criminal Justice Report. The recommendations deal with the tendency and coincidence evidence. The Commission recommended lowering the threshold for the admissibility of tendency and coincidence evidence in criminal justice cases involving child sexual abuse to facilitate both greater admissibility and cross admissibility of such evidence and the increased use of joint trials.

Tendency and Coincidence Evidence Explained

Tendency and coincidence evidence in the context of child sexual offence proceedings are explained as follows:

Tendency evidence is evidence of prior sexual acts with a child or multiple children or prior sexual interest in a child or multiple children that shows the defendant has a tendency to commit sexual offences against children in certain circumstances.

Coincidence evidence arises from evidence of sufficiently similar alleged incidents from two or more children complainants when the evidence shows it would be too much of a coincidence that multiple similar allegations have been made against the defendant unless they were true.

The current legal tests are found in Part 3.6 of the Act. They are that the tendency  and coincidence evidence:

  •  must have significant probative value, and
  •  when the evidence is being introduced by the prosecution, the probative value of the evidence must substantially outweigh any pre-judicial effect it may have on the defendant.

Outline of the Bill

The Bill amends Part 3.6 of the Act, which sets out the tendency and coincidence rules of evidence.

The main features of this Bill are:

  •  clarification that principles or rules of the common law or equity preventing or restricting the admissibility of evidence about propensity or similar fact evidence are not relevant when applying Part 3.6 of the Act;
  • providing that a court, when assessing the probative value of evidence under Part 3.6 of the Act, is not to have regard to the possibility that tendency evidence or coincidence evidence may be the result of collusion, concoction or contamination;
  • introducing a rebuttable presumption that certain tendency evidence relating to a child sexual offence is presumed to have significant probative value and to set out matters that may not ordinarily be taken into account by a court to overcome that presumption and determine that the evidence does not have significant probative value;
  • clarification that coincidence evidence includes evidence from multiple witnesses claiming they are victims of an accused person, which is used to prove, on the basis of similarities in their evidence, that the accused person did a particular act;
  • providing that tendency evidence or coincidence evidence adduced by the prosecution about a defendant is inadmissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant; and
  • providing that the proposed amendments do not affect proceedings, where a hearing has already begun, or notices already given in proceedings.

Comments by the Attorney General

According to the Attorney General's explanatory statement the reforms introduced in the proposed Bill change the approach to the admissibility of tendency and coincidence evidence and are "based on the findings and the recommendations of the Royal Commission about the relevance and the use of this evidence in prosecuting child sexual offences". The Bill does not however, change the general approach to evidence law and in particular, evidence must still be relevant. General discretions and mandatory exclusions that apply when evidence is unfairly prejudicial, misleading or confusing, or its probity value is outweighed by the danger of unfair prejudice to the defendant remain.

" . . . this is an important reform to the tendency evidence and coincidence provisions that should encourage relevant evidence to be admissible in appropriate circumstances. The Royal Commission found that the criminal justice system is failing to provide adequate criminal justice for victims. The Bill is a step forward to addressing that failure."

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Evidence (National Uniform Legislation) Amendment Bill 2020 [NT], explanatory statement and explanatory speech as reported in TimeBase's LawOne Service.

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