Issues common to ss 97 and 98

Tendency and coincidence evidence in civil proceedings

11.31 The operation of ss 97 and 98 in civil proceedings was also considered in DP 69. The Commissions referred to a submission from the Law Council of Australia that, in civil proceedings, the rules of evidence should be kept to a minimum, and the admission of tendency and coincidence evidence should be left to principles of ‘sufficient relevance’.[36]

11.32 The Law Council of Australia’s submission did not identify the way in which its proposal might be implemented. The concept of ‘sufficient relevance’ is the common law requirement of relevance. The ‘sufficiency’ aspect of the common law requirement is dealt with by s 135—the relevance discretion.[37] The view taken in DP 69 was that what was proposed by the Law Council of Australia was that the admissibility in civil proceedings of tendency and coincidence evidence should be controlled by s 135.

11.33 The Commissions expressed the view that there would not be any advantage gained in applying this approach in civil proceedings.[38] While it has the merit of simplifying the statement of the rules to be applied in civil proceedings, it will not remove the need to argue and consider the probative value of the evidence in question. It will in fact have the result that, in civil cases, whenever the issue of admissibility arises, it will be dealt with by a balancing process under s 135.

11.34 One of the benefits of applying ss 97 and 98 in civil proceedings is that they can be used to exclude evidence on objection on the single basis of insignificant probative value without a debate involving the balancing process of s 135. It also needs to be borne in mind that parties preparing for cases consider what evidence to call. In making this decision, they will commonly consider whether the evidence will satisfy the rules of admissibility. It is important for this exercise that there be a threshold test such as ‘significant probative value’ rather than a balancing discretion, the outcome of which is less predictable. The reality is that the application of ss 97 and 98 in civil proceedings is likely to have the result that there will be significantly fewer occasions when s 135 has to be considered.

Submissions and consultations

11.35 One concern raised in response to DP 69 is that s 97 will allow too readily the admission of tendency evidence in civil proceedings.[39] The view is expressed that the equivalent of the common law similar fact requirements should be imposed—such as requiring a striking similarity—s 135 not being an adequate final control. The contrary view was also expressed that a requirement of significant probative value is appropriate and adequate.[40]

The Commissions’ view

11.36 The policy concerns giving rise to the uniform Evidence Acts’ approach were that the typical evidence—prior conduct—may have minimal probative value, cause unfair prejudice, raise collateral issues, take parties by surprise and have a significant impact on the time and costs of litigation.[41] There was also concern about the range of approaches to the control of the admission of such evidence at common law.[42] These concerns remain and the Commissions consider that a threshold requirement of significant probative value must be satisfied before such evidence can be admitted. Further, experience of the ‘significant probative value’ test suggests that the concerns that have been raised are not, in fact, warranted. The Commissions remain of the view that no change should be made.

Notice requirements

Submissions and consultations

11.37 Concerns are expressed by the Office of the Director of Public Prosecutions New South Wales (NSW DPP) that the notice requirements in relation to tendency and coincidence evidence are too onerous.[43] Reference is made to cl 6(2) of the Evidence Regulation 2000 (NSW) which states:

A notice given under section 97(1)(a) of the Act (relating to the tendency rule) must state:

(a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce, and

(b) if that evidence consists of, or includes, evidence of conduct of a person, particulars of:

(i) the date, time, place and circumstances at or in which the conduct occurred, and

(ii) the name of each person who saw, heard or otherwise perceived the conduct, and

(iii) in a civil proceeding—the address of each person so named, so far as they are known to the notifying party.[44]

11.38 The NSW DPP, quoting from the case R v AB,[45] notes that it is sufficient compliance with the regulation if the notice states ‘either in its own body or by reference to documents readily identifiable, the nature and substance of the evidence sought to be tendered’.[46] The NSW DPP submits that

the notice provisions are interpreted such that where the Crown wishes to rely on tendency evidence in an alleged sexual assault prosecution involving a number of complainants, the Crown must nominate in the notice each paragraph of each complainant’s statement which refers to the alleged offences against the other complainants. In our view notice by the Crown that it intends to rely upon the alleged offences committed against complainants A, B and C as set out in their statements dated x, y and, z respectively, should constitute adequate notice.[47]

11.39 The NSW DPP renews its submission, in response to DP 69, arguing that the defence would have the bulk of the Crown brief of evidence. Referring to the policy issue of time and cost, the NSW DPP submits that the issue be reconsidered because of its costs implications.[48]

The Commissions’ view

11.40 In DP 69, the Commissions noted that the construction of the regulations and the practice developed in NSW,[49] if complied with, is onerous. However, the Commissions also noted that the detail required has the benefit of requiring careful thought on the part of the prosecution in identifying the evidence on which it seeks to rely. The Commissions commented that it is critical in determining the admissibility of this class of evidence to identify the evidence with precision. It is then possible accurately to identify the relevance of the evidence and the way the prosecution intends to rely upon it. Other benefits identified were enabling defence lawyers to prepare, with reasonable confidence, to test the evidence sought to be led and limiting the scope for misunderstanding between the prosecution and the defence thereby reducing time spent in court while clarification is given.[50]

11.41 Time and cost considerations are very important. However, they include not only the time and cost implications for the prosecution, but also the time and cost implications for the defence, for the trial and those associated with any retrials. Requiring the prosecution to give notice is important and helps significantly to reduce the time and cost involved in those other areas.

11.42 It is suggested, therefore, that the advantages to all parties and to the trial system of the present rules and practice outweigh the burden placed upon the prosecution. The Commissions consider no change is required to the notice provisions under s 99 of the uniform Evidence Acts or the regulations.

A drafting issue

11.43 Another concern addressed in DP 69 was the difficulty in understanding ss 97 and 98 which arises from the use of the word ‘if’ in the text immediately before paragraphs (a) and (b) (in both ss 97(1) and 98(1)) and the resulting need for double negatives in the section.[51]

11.44 In DP 69, the Commissions proposed a draft which substituted the word ‘unless’ for ‘if’ and the removal of the double negatives. This change is supported in consultations and submissions.[52] The Commissions recommend that the changes be made.

Recommendation 11–3 Section 97 of the uniform Evidence Acts should be amended to replace the word ‘if’ with ‘unless’, and to replace the word ‘or’ with ‘and’ and to make any necessary consequential amendments. If Recommendation 11–1 is not taken up, a corresponding amendment should be made to s 98.

The use of ‘significant’ and ‘substantial’ to qualify probative value

11.45 Sections 97 and 98 provide a test of ‘significant probative value’ on tendency and coincidence evidence tendered as relevant to the factual issues in the case. This is to be contrasted with the ‘substantial probative value’ test in s 103 for cross-examination on matters of credit.

Submissions and consultations

11.46 In the course of consultations on DP 69, concerns were raised about the meaning of ‘significant probative value’ in ss 97 and 98 and ‘substantial probative value’ in s 103.[53] Experience of the application of the uniform Evidence Acts indicates that there was some debate initially about the different meanings of these terms, but the debate has been resolved.[54] It has been held that ‘significant’ means something more than mere relevance but less than a substantial degree of relevance.[55] To be significant it must be of consequence and this will depend on the nature of the fact in issue and the importance of the evidence in establishing the fact.[56] The issue was not raised in consultations on DP 69 in the present uniform Evidence Act jurisdictions.

11.47 Issues were also raised as to why ss 97 and 98 qualify the expression ‘probative value’ with the word ‘significant’ and s 103 imposes a more rigorous qualification of ‘substantial’.[57] It is argued, for example, that a requirement of substantial probative value should operate to control the admission of tendency and coincidence evidence, particularly against the accused person, and a requirement of significant probative value would be more appropriate as a control of cross-examination as to credit under s 103, particularly when conducted on behalf of an accused person.[58]

11.48 The argument does not give due recognition to the fact that ss 97 and 98 provide a preliminary admissibility screen which operates in both civil and criminal proceedings and that, in criminal proceedings, there are other requirements that must be satisfied. In particular, tendency or coincidence evidence tendered against an accused that satisfies ss 97 or 98 must satisfy the requirement of s 101—that the probative value substantially outweighs the prejudicial effect. As to evidence relevant to credibility, the requirement of substantial probative value imposed by s 103 applies to all cross-examination but in relation to cross-examination of accused persons, the uniform Evidence Acts impose further constraints.[59]

11.49 The Commissions recognise that in criminal trials cross-examination on behalf of the accused directed to the credibility of witnesses called by the Crown is critical and it is important that rules controlling such cross-examination do not prevent effective cross-examination of that kind. However, there has been no suggestion in the course of consultations that the requirement of ‘substantial probative value’ has created any difficulties for cross-examination conducted on behalf of accused persons in uniform Evidence Act jurisdictions.

11.50 The explanation of the distinction lies in the fact that a more rigorous requirement is needed for evidence the admissibility of which can only be justified on the basis that it relates to issues of credibility. Such issues are collateral issues and carry with them the dangers, among other things, of adding unnecessarily to the time and cost of proceedings. On the other hand, the provisions relating to tendency and coincidence evidence concern evidence relevant to the facts in issue and a lower preliminary threshold is warranted.

The Commissions’ view

11.51 The Commissions consider that the meanings of ‘significant probative value’ and ‘substantial probative value’ have been construed appropriately and are reasonably clear. In addition, the use of the terms ‘significant’ and ‘substantial’ strikes the balance required for the appropriate operation of ss 97, 98 and 103.[60] No changes are proposed in the use of the expressions.

[36]Law Council of Australia, Submission E 32, 4 March 2005.

[37] The common law test requires consideration of the matters listed in s 135, including the consideration of unfair prejudice. See discussion in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [640]–[645]; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 2 (1985), Appendix C [57]; Australian Law Reform Commission, Evidence, ALRC 38 (1987), [122].

[38]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [10.36].

[39]Confidential, Submission E 63, 29 August 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 30 August 2005.

[40]Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 30 August 2005.

[41]Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [790].

[42] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 2 (1985), Appendix C [172]–[175]; Australian Law Reform Commission, Evidence, ALRC 38 (1987), Appendix C [24].

[43]Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[44] The same wording appears in Evidence Regulations 1995 (Cth) cl 6(2) and Evidence Regulations 2002 (Tas) cl 5(2).

[45]R v AB [2001] NSWCCA 496, [15].

[46]Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005, citing R v AB [2001] NSWCCA 496, [15].

[47]Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[48] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[49] This practice was explained in a consultation: Judicial Officers of the Supreme Court of New South Wales, Consultation, Sydney, 31 March 2005.

[50]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [10.18].

[51]Ibid, [10.26].

[52]Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; J Gans, Consultation, Melbourne, 17 August 2005.

[53]Criminal Bar Association of Victoria, Submission E 114, 22 September 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 30 August 2005.

[54]S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.6680].

[55]R v Lockyer (1996) 89 A Crim R 457.

[56]R v Lock (1997) 91 A Crim R 356, 361.

[57]Criminal Bar Association of Victoria, Submission E 114, 22 September 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 30 August 2005.

[58] For further discussion in the context of the credibility rules, see Ch 12.

[59] Evidence Act 1995 (Cth) s 104, Pt 3.8.

[60] For further discussion of credibility rules, see Ch 12.