LAWS50037 · Evidence And Proof
Tendency and Coincidence
Tendency and coincidence evidence answers one question: may the fact-finder reason from how a person has behaved before (or from a pattern across events) to what they did on this occasion? The default answer is no — the tendency rule (s 97) and the coincidence rule (s 98) — unless the party gave reasonable notice and the evidence has significant probative value. Per Hughes v The Queen, significant probative value needs no ‘striking similarity’ or common modus operandi: ask the strength of the tendency-to-fact inference and the extent to which it makes the fact more likely, in the whole-case context. For prosecution evidence about an accused, a further hurdle applies under s 101 (in Victoria, probative value must substantially outweigh prejudice). Probative value is assessed with the evidence taken ‘at its highest’ (IMM v The Queen, a flagged tension), and the old common-law Pfennig test is superseded — do not apply it. This chapter also covers the credibility rule (s 102) and its s 101A definition and exceptions.
What this chapter covers
- 01s 97 — the tendency rule (notice + significant probative value)
- 02The lecturer’s three-step s 97 test
- 03s 98 — the coincidence rule (2+ events, similarity-based improbability)
- 04Significant probative value — Hughes v The Queen
- 05s 101 — the further restriction on prosecution evidence (Vic: substantially outweighs)
- 06IMM v The Queen — probative value ‘at its highest’
- 07The credibility rule (s 102) + s 101A definition & exceptions
Worked example: does prior conduct clear s 97 and s 101?
- +1Fix the use and rule. The evidence is led to prove a tendency — that the accused had a tendency to defraud elderly clients by misleading paperwork — so the tendency rule (s 97) applies. State the precise tendency.
- +1Notice (s 97(1)(a), s 99). Reasonable written notice was given, so the first condition is met.
- +1Significant probative value (s 97(1)(b); Hughes; the three-step test). (1) Do the incidents prove underlying facts, not speculation? (2) Do they amount to a pattern (similar method, close in time)? (3) Does the tendency make it significantly more likely he did the charged act? Three similar, proven, recent incidents clear this without needing ‘striking similarity’.
- +1s 101 (prosecution v accused). Because it is prosecution evidence about the accused, probative value must substantially outweigh the danger of unfair prejudice (Vic). Assess probative value ‘at its highest’ (IMM).
- +1Conclude (and do NOT use Pfennig). If PV substantially outweighs prejudice, the evidence is admitted as tendency evidence; do not apply the superseded common-law Pfennig ‘no rational view consistent with innocence’ test.
Key terms
- Tendency rule (s 97)
- Evidence of a person’s character, reputation, conduct or tendency is inadmissible to prove they have a tendency to act in a particular way or have a particular state of mind, unless (a) reasonable written notice is given and (b) the court thinks it has significant probative value.
- Coincidence rule (s 98)
- Evidence that two or more events occurred is inadmissible to prove a person did an act or had a state of mind on the basis that, given the similarities, it is improbable they occurred coincidentally — unless notice and significant probative value. Turns on similarity-based improbability, not a loose ‘what a coincidence’ intuition.
- Significant probative value
- The s 97/98 gate. Per Hughes v The Queen, no ‘striking similarity’ or common modus operandi is required; ask the strength of the tendency-to-fact inference and the extent to which it makes the fact more likely, in the whole-case context.
- s 101 (prosecution restriction)
- A further hurdle for tendency/coincidence evidence the prosecution leads about an accused: probative value must (in Victoria) substantially outweigh the danger of unfair prejudice. It sits on top of, not instead of, the s 97/98 significant-probative-value gate.
- IMM v The Queen (2016)
- Probative value is assessed with the evidence taken ‘at its highest’ — assume it is accepted; do not discount for the witness’s reliability or credibility (the ‘foggy-night’ qualification: a factor may cap how high the highest point reaches). Drives the PV figure used in ss 97, 98, 101, 135 and 137.
Tendency and Coincidence FAQ
What is the difference between the tendency rule and the coincidence rule?
The tendency rule (s 97) is about reasoning from a person’s disposition or pattern of conduct to what they did on this occasion. The coincidence rule (s 98) is about reasoning from the similarity of two or more events to the conclusion that it is improbable they occurred coincidentally — so a person did the act. Both default to inadmissible and both need notice plus significant probative value; pick the rule by whether the inference runs through tendency or through similarity-based improbability.
Do I still need ‘striking similarity’ for tendency evidence?
No. Hughes v The Queen settled that significant probative value does not require striking similarity or a common modus operandi. The questions are the strength of the tendency-to-fact inference and how far it makes the fact in issue more likely, judged in the context of the whole case. An obsession or a pattern of prior conduct can clear s 97 even without identical facts.
How does s 101 change the analysis for prosecution evidence?
It adds a second, tougher gate. Once tendency or coincidence evidence the prosecution leads about an accused has significant probative value (s 97/98), s 101 requires that probative value to substantially outweigh the danger of unfair prejudice — in Victoria the ‘substantially outweighs’ standard. So prosecution tendency evidence must clear both the s 97/98 gate and the s 101 balance; defence tendency evidence faces only the first.
How do I assess probative value, and can I use Pfennig?
Assess probative value with the evidence taken ‘at its highest’ (IMM v The Queen): assume it is accepted, and do not discount for the witness’s reliability — though a factor may cap how high the highest point reaches. Do not apply the common-law Pfennig ‘no rational view consistent with innocence’ test; it is superseded by the Uniform Evidence Law. Cite Pfennig only to warn against importing the old standard.
Exam move
Run prior-conduct and multi-event chains through the gates in fixed order: (1) is the use a tendency (s 97) or coincidence (s 98) use — state the precise tendency or the precise similarity; (2) notice given; (3) significant probative value, using the lecturer’s three-step test and Hughes (no striking similarity needed); (4) if prosecution v accused, does PV substantially outweigh prejudice under s 101. Always assess probative value ‘at its highest’ per IMM, and never apply the superseded Pfennig test. Keep the credibility rule (s 102, s 101A and its exceptions) on the same tab, and remember these rules are cumulative with hearsay and opinion, not alternatives.
