Tendency & Coincidence
(Question 22)
In what circumstances is evidence admissible if it only suggests that a party has tendency or propensity to engage in conduct of the kind in issue ?
Relevance 55, 56
Only admissible if it could irationally affect (directly or indirectly) the assessment of the probability of the existance of a fact in issue in the proceedings 55(1)
Tendancy evidnce is generally inadmissible 97
Tendancy evidences adduced for the purposes of 97 may be adduced where:
a. party gives reasonable notice in writing 97(1)(a)
b. Can be waived under 100
192 Stanoevsky
No notice is required if evidence adduced to explain or contradict tendancy evidence adduced by the other party 97(2)(b)
if the court believes that the evidence will have significant probative value 97(1)(b)
Significant is :
More than mere relevance but less than a substantial degree of relevance
It is a probative value of which is imprtant or consequence R v Lockyer
Dictionary definition of probative value
Extent to which the evidence could rationally affect the assessment of the prabability of a fact in issue
Tendancy Rule does not apply if:
Fact in issue 94(3)
Bail or sentence 94(2)
Only relates to credibility of the witness 94(1)
Incriminal proceedings if:
Probative Value substantially outweighs prejudicial effect 10(2)
Discretionary exclusions available under 101 not applied 135-137
99 notice, 110, 111, 293 CPA Sexual proff
(Question 23)
You are acting for the accused and the prosecution want to call evidence that is intended to demonstrate that the accused was at the relevant time at the scene of the crime. The evidence is that one of the robbers at the scene of the crime was shot in the arm. This evidence is then linked to the fact that the accused has been treated for a gunshot would at around the time of the robbery. Can you prevent this evidence from being admitted ?
Relevance 55 56
Rationally effect value of a fact in issue
Given that there is a low threshold for that test of relevance Smith and fact that
Evidence of gunshot wound and evidence that the accused was shot it is likely to be relevant as it goes to whther the accused can be placed at the crime scene. which goes to whether he committed the robbery
Coincidence
Assuming 94(2) satisfied (not dealing with sentencing) It is arguable that the coincidence applies and restrictions in 98 and 101 apply
Test is - having regard to any similarities in the events or circumstances in which they occur 98(1)
In Criminal Proceedings, to lead coincidence evidence:
Give reasonable notice in writing to the other party 98(1)(a)
Can be waived under 100
192 Stanoevsky
No notice rquired if evidence is adduced to ecxplain or contradict tendancy adduced by the other party 98(2)(b)
Court needs to form the view that the evidence will have significant probative value 98(1)
Significance is
More than mere relevance but less than substantial degree of relevance
It is probative value which is important or of consequence R v Lockyer
Dictionary definition of probative value
extent to which the evidence could rationally affect the assessment of the prabability of fact in issue
Of importance is degree of similarity of events and whether there is an alternative explanation for the evidence
In this case, it is likely that the evidence does have significant probative value; and
The probative value of the evidence substantially outweighs any prejudicial effect it may have on D 101(2)
There will be prejudice to D as
Jury may too readily accept prosecutions evidence and may be destracted from the central issues
Jury may assume no coincidence and prematurely impute guilt on D
Evidence is also circumstantial
May still b excluded under 101 (stricter test) 135-137
Court may wave rules 190
192 appliues Stanoevsky