Tendency evidence—s 97

11.8 Section 97(1) provides:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.[9]

The section applies in both civil and criminal proceedings.

Determining whether evidence is tendency evidence

11.9 The differing views taken in a decision of the New South Wales Court of Criminal Appeal, R v Cakovski,[10] as to whether certain evidence was tendency evidence, were referred to in IP 28.[11] The issue was considered further in DP 69.[12] The Commissions there commented that the judgments demonstrate that views can differ as to the application of s 97 but that this does not point to any problem with the definition of tendency evidence in the uniform Evidence Acts. The Commissions concluded that legislative amendment cannot resolve the differences of opinion that may occur from case to case.

Submissions and consultations

11.10 The only relevant submission received was that responding to IP 28.[13] The NSW DPP expresses the view that the definition of tendency evidence is satisfactory. In submissions and consultations on DP 69, no views were directed to this issue.

The Commissions’ view

11.11 The Commissions remain of the view that no change should be made to the definition of tendency evidence in s 97. As explained in DP 69, although R v Cakovski points to potential problems in the process of characterising the evidence as tendency evidence or otherwise, that case provides an example of the robustness of the package provided by the uniform Evidence Acts. Although, in that case, the approach taken by Hodgson JA and Hulme J had the result that ss 97 and 101 did not control the admissibility of the evidence because it was not tendency evidence, the uniform Evidence Acts provide the means to control admissibility through s 135.[14] Consequently, the Commissions do not recommend any amendment to the definition of tendency evidence in s 97.

Scope of operation of s 97

11.12 Submissions and consultations on DP 69 raise a new issue—whether s 97 goes too far in allowing evidence of character and reputation evidence to be admitted, or not far enough.

11.13 In arguing for a more limited provision, one submission states that there is no place for character evidence unless the accused has put his or her character in issue and there is no place at all for reputation evidence. The submission also states that s 97, together with s 101, would weaken the common law test. The submission argues that s 97, in its present form, should be confined in criminal trials to evidence adduced by the accused.[15]

11.14 The contrary view is also put that the provision is too stringent and will exclude probative evidence which should be admissible against accused persons. It is submitted that, if relevant to a fact in issue, tendency evidence should be prima facie admissible.[16] This submission relies on recommendations made in 2002 and 2004[17] as a result, in part, of the case law in New South Wales (NSW)[18] that tendency evidence should be excluded under ss 97 and 101 unless it bears no reasonable explanation other than the inculpation of the accused for the crime charged. That interpretation was rejected in R v Ellis[19]and so no longer applies.

The Commissions’ view

11.15 The submissions highlight the challenge posed by evidence of prior misconduct and other evidence of bad character. It can be highly prejudicial evidence carrying with it the very grave risk of wrongful conviction. At the same time, it can be very important and highly probative evidence. The submissions also highlight the different perceptions and strongly held views that exist about the likely operation of the relevant provisions. The uniform Evidence Acts, especially through ss 97–101, recognise the competing issues and provide the means by which the trial judge can resolve this fundamental conflict.

11.16 The submissions also highlight the problem referred to elsewhere in the Report about the tendency to look at the specific exclusionary rules and their exceptions and assume that if evidence is not excluded by those rules it will be admissible. This is not so. Section 97, for example, does not make evidence of character, reputation or conduct admissible to prove a relevant tendency. Assuming such evidence is relevant and that it attracts and satisfies s 97, it will not be admissible unless, in the case of criminal proceedings, it satisfies s 101 and, in civil and criminal proceedings, it does not fall foul of the discretionary and mandatory exclusions in Part 3.11. The reference to character and reputation in s 97 was necessary as a matter of drafting to cast the net of s 97 wide enough to ensure that the controls of ss 97 and 101 would be available to exclude, where appropriate, any evidence relevant because it tends to prove a tendency.

11.17 Experience of the legislation suggests that the concerns expressed are not warranted.[20] The Commissions remain of the view that ss 97–101 provide an appropriate combination of rules for controlling the admissibility of tendency evidence.

[9] See the discussion of the concept ‘probative value’ in Ch 3.

[10]R v Cakovski (2004) 149 A Crim R 21.

[11]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [8.7]. The accused was charged with murder and relied on self-defence in circumstances where he maintained that the deceased had continued to threaten to attack him even though he held a knife. The evidence in question concerned past acts of violence and threats of violence by the deceased. One judicial analysis was that this evidence made the accused’s account more credible. The other was that it did so because of the tendency to violence it revealed. All judges agreed that the evidence had significant probative value.

[12]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), [10.8]–[10.15].

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

[14]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), [10.15].

[15]Confidential, Submission E 63, 29 August 2005.

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

[17]New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), [4.25]–[4.30]; NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004), 8, 10.

[18]R v Lock (1997) 91 A Crim R 356, 366; R v AH (1997) 42 NSWLR 702, 709; R v Fordham (1997) 98 A Crim R 359.

[19]R v Ellis (2003) 58 NSWLR 700.

[20] It is noted that the New South Wales Public Defenders Office expresses no concern about s 97: New South Wales Public Defenders Office, Submission E 89, 19 September 2005.