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4.16.1-c1-s3
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4.16.1 Charge: Admissions by Silence
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If you do draw this inference, you can use NOA’s admission to [*identify permissible uses of the admission. See *4.16 Silence in Response to Equal Parties *for guidance*]. However, you may only do so if you are accept that the admission was true. Even then, you should not give this evidence great weight. Even if you find that the accused's silence was an admission, you must still decide, based on all the evidence, whether the prosecution has proved the accused's guilt beyond reasonable doubt.
[*If a s 165 Unreliability Warning is required, insert here. See *4.21 Unreliable Evidence Warning *for further information.*]
It is important to note that NOW’s statement that [*identify statement*] is not itself evidence of the facts alleged in that statement. The evidence about those facts comes from NOA’s reactions to the statement. This means that if you do not find that NOA admitted the truth of NOW’s statement by remaining silent, then you must completely disregard the statement. [*If relevant, add: *Similarly, if you find that s/he only accepted part of the statement, then you must disregard the other parts.[^3]]
Last updated: 22 March 2023
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[^2]: This charge is based on the assumption that the judge has already instructed the jury about inferences. It will need to be modified if that has not been done.
[^3]: This paragraph is based on the assumption that a judge has limited the use of the evidence under *Evidence Act 2008* s 136. If this has not been done, it will need to be modified accordingly.
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4.17-c1-s1
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4.17 Tendency Evidence
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# 4.17 Tendency Evidence
## Overview
1. Part 4, Division 2, of the *Jury Directions Act 2015* regulates jury directions on ‘other misconduct evidence’. This is defined as:
1. Coincidence evidence, as defined in the *Evidence Act **2008*;
1. Tendency evidence, as defined in the *Evidence Act **2008*;
2. Evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
3. Evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (*Jury Directions Act 2015* s 26).
2. This topic examines tendency evidence as a form of ‘other misconduct evidence’.
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4.17-c2-s1
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4.17 What is “Tendency Evidence”?
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## What is “Tendency Evidence”?
1. “Tendency evidence” is evidence that is used to prove that a person has or had a tendency to:
- Act in a particular way; or
- Have a particular state of mind (*Evidence Act 2008* s 97).
2. The following types of evidence may, in certain circumstances,[^2] be used to prove that a person had such a tendency:
- Evidence of a person’s character;
- Evidence of a person’s reputation;
- Evidence of a person’s conduct; or
- Evidence of a tendency that a person has or had (*Evidence Act 2008* s 97).
## How do “tendency evidence” and “coincidence evidence” differ?
3. Care must be taken to distinguish “tendency evidence” from “coincidence evidence” (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
4. “Tendency evidence” is evidence that allows the jury to reason that:
he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue (*Hughes v The Queen* (2017) 344 ALR 187 at [70] per Gageler J).
5. “Coincidence evidence” is evidence which uses the improbability of two or more events occurring coincidentally to prove that a person performed a particular act or had a particular state of mind (*Evidence Act 2008* s 98).
6. While the evidence that constitutes “tendency evidence” and “coincidence evidence” may seem similar, the type of inferential reasoning used by the jury differs for each type of evidence:
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[^2]: See “Admissibility of Tendency Evidence” below.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.17-c2-s2
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4.17 What is “Tendency Evidence”?
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- In relation to coincidence evidence, the jury relies on the *improbability of events occurring other than in the way suggested* to infer the fact in issue (“coincidence reasoning”);
- In relation to tendency evidence, the jury relies on the fact that a person *has a tendency to** act in a certain way* to infer the fact in issue (“tendency reasoning”) (*R v Nassif* [2004] NSWCCA 433).[^3]
7. Judges must therefore separately determine whether to admit evidence as tendency evidence and whether to admit evidence as coincidence evidence. In doing so, they must consider how the parties seek to use the evidence, as that will determine which admissibility test applies and what directions the jury must be given (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
8. See 4.18 Coincidence Evidence for further information concerning coincidence evidence.
## How do “tendency”, “relationship” and “context” evidence differ?
9. “Tendency evidence” must also be distinguished from:
- “Relationship Evidence”: Evidence that demonstrates the nature of a relevant relationship, which may be used as circumstantial evidence of the accused’s guilt (see, e.g., *R v BJC* (2005) 13 VR 407; *Gipp v R* (1998) 194 CLR 106; *R v Vonarx* [1999] 3 VR 618); and
- “Context Evidence”: Evidence that provides essential background information, which may help the jury to assess and evaluate the other evidence in the case in a true and realistic context (see, e.g., *R v AH* (1997) 42 NSWLR 702; *R v Camilleri* [1999] VSC 159; *R v Sadler* (2008) 20 VR 69).
## Determining whether evidence is “tendency evidence”
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[^2]: See “Admissibility of Tendency Evidence” below.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.17-c2-s3
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4.17 What is “Tendency Evidence”?
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10. It is important for judges to determine whether evidence is sought to be admitted and used as tendency evidence, coincidence evidence, relationship evidence and/or context evidence. That determination will affect the admissibility test to apply and the directions to be given.
11. As this can be a difficult task, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see *HML & Ors v R* (2008) 235 CLR 334 per Hayne J).
12. The prosecution should clearly articulate how it says the jury should use the relevant evidence. If that use would involve tendency reasoning (see above), then the evidence must be treated as tendency evidence (*Qualtieri** v R* [2006] NSWCCA 95; *R v Li* [2003] NSWCCA 407; *R v AH* (1997) 42 NSWLR 702; *R v **Ngatikaura* [2006] NSWCCA 161; *R v **Cakovski* (2004) 149 A Crim R 21).
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[^2]: See “Admissibility of Tendency Evidence” below.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.17-c3-s1
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4.17 Admissibility of Evidence Capable of Proving a Tendency
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## Admissibility of Evidence Capable of Proving a Tendency
1. Evidence which may show that a person has a particular tendency may be admitted:
- In order to prove that tendency; or
- For another purpose.
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4.17-c4-s1
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4.17 Admitting evidence in order to prove a tendency
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## Admitting evidence in order to prove a tendency
1. The “tendency rule” states that evidence is generally[^4] not admissible *as* tendency evidence (i.e., for the purposes of proving a tendency) unless:
- The party seeking to adduce the evidence gave reasonable notice of its intention to do so; and
- The court thinks that the evidence will have significant probative value (*Evidence Act 2008* s 97).
2. In determining the probative value of tendency evidence, the court must examine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue to a significant extent. The facts in issue are the facts which establish the elements of the offence (*Hughes v The Queen* (2017) 344 ALR 187 at [16]).
3. The probative value of tendency evidence depends on the issues the evidence is used to prove. Where the evidence is used to prove the identity of the offender for a known offence, close similarity between the prior conduct and the offending is necessary. However, different considerations arise where the fact in issue is whether the alleged offending occurred. Where the defence suggests that prosecution witnesses have fabricated their allegations, proof that the accused has a tendency to engage in the conduct alleged is likely to be influential in determining whether the prosecution has excluded the possibility that the witnesses have fabricated their accounts or been mistaken (*Hughes v The Queen* (2017) 344 ALR 187 at [39]–[40]. See also *Thrussell v R* [2017] VSCA 386 at [53]).
4. In assessing whether evidence has significant probative value, the court must consider:
- The extent to which the evidence supports the alleged tendency; and
- The extent to which the alleged tendency makes the facts alleged to prove the charged offence more likely (*Hughes v The Queen* (2017) 344 ALR 187 at [41]).
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c4-s2
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4.17 Admitting evidence in order to prove a tendency
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5. While conduct which has been repeated on multiple occasions will often have greater probative value, evidence of a single occasion is capable, in appropriate cases, of meeting the tests for admission as tendency evidence. Any delay between instances of the alleged conduct will also be relevant when assessing the probative value of the evidence (*Reeves v R* (2013) 41 VR 275; *GBF v R* [2010] VSCA 135).
6. Where it is the *prosecution* who seeks to lead tendency evidence about the *accused*, the evidence will only be admissible if its probative value substantially outweighs any prejudicial effect that it may have on the accused (*Evidence Act 2008* s 101).
7. The provisions concerning the admissibility of tendency evidence are a code which replaced the common law rules regarding propensity and similar fact evidence (*Hughes v The Queen* (2017) 344 ALR 187 at [31]; *Velkoski v R* (2014) 45 VR 680; *R v Ellis* (2003) 58 NSWLR 700; *Murdoch v R* (2013) 40 VR 451).
8. In determining whether tendency evidence has significant probative value, the possibility of collusion, collaboration or innocent infection is not relevant, unless those possibilities rise to a level where it would not be open to the jury rationally to accept the evidence (*R v Bauer* [2018] HCA 40 at [69]). Previous decisions holding that the possibility of collusion destroys the probative value of tendency evidence have been overruled (compare *Velkoski v R* (2014) 45 VR 680; *Murdoch v R* (2013) 40 VR 451; *PNJ v R* (2010) 27 VR 146; *BSJ v R* (2012) 35 VR 475).
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c4-s3
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4.17 Admitting evidence in order to prove a tendency
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9. If judges decide to admit tendency evidence in circumstances where there is a risk of collusion, collaboration or innocent infection, the judge must warn that jury that it must find that the evidence from each witness was not affected by other witnesses before acting on the tendency evidence (*Velkoski v R* (2014) 45 VR 680; *Murdoch v R* (2013) 40 VR 451 at [134]; *PNJ v R* (2010) 27 VR 146; *BSJ v R *(2012) 35 VR 475).
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c4-s4
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4.17 Admitting evidence in order to prove a tendency
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## Admitting evidence for another purpose
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c4-s5
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4.17 Admitting evidence in order to prove a tendency
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10. The “tendency rule” only governs the admission of evidence that is sought to be adduced *as *tendency evidence. It does not prevent the admission of evidence that may show that a person has a tendency (e.g., evidence of prior violent acts) for another purpose (e.g., to provide context for the offence) (see, e.g., *R v Quach* [2002] NSWCCA 519; *Conway v R* (2000) 98 FCR 204; *FDP v R* (2008) 74 NSWLR 645; *R v Cornwell* (2003) 57 NSWLR 82; *R v Lock* (1997) 91 A Crim R 356).
11. Such evidence does not need to comply with the tendency rule in order to be admitted. Instead, its admissibility is governed by the general test of relevance in Part 3.1 of the Evidence Act 2008, and the discretions contained in Part 3.11 of that Act (*R v Quach* [2002] NSWCCA 519; *Conway v R* (2000) 98 FCR 204; *FDP v R* (2008) 74 NSWLR 645; *R v Cornwell* (2003) 57 NSWLR 82; *R v Lock* (1997) 91 A Crim R 356).
12. While such evidence may be admitted for a non-tendency purpose, if it is not admissible under the tendency rule, it cannot be used to prove that a person has or had a relevant tendency (*Evidence Act 2008* s 95).
13. This means that where evidence is admitted for another purpose, the jury may only use it as tendency evidence if it also satisfies the requirements of s97 and s101 (*Evidence Act 2008* s 95; *R v OGD (No 2)* (2000) 50 NSWLR 433; *KJR v R* [2007] NSWCCA 165).
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c4-s6
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4.17 Admitting evidence in order to prove a tendency
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14. This issue can be important in trials involving multiple charges. In such trials, questions may arise as to whether evidence admitted to prove one charge can be used as tendency evidence to prove a matter relevant to one of the other charges. In answering this question, the court must determine whether that evidence would be admissible under the tendency rule if the charges were heard separately (*R v Nassif* [2004] NSWCCA 433; *R v Ellis* [2004] HCA Trans 488).
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[^4]: The tendency rule is subject to a number of exceptions and exclusions. See, e.g., *Evidence Act 2008* ss 94, 97(2), 110, 111.
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4.17-c5-s1
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4.17 Uses of Tendency Evidence
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## Uses of Tendency Evidence
1. Where evidence of a person’s past behaviour is admissible under the tendency rule,[^5] the jury may use that evidence to:
- Infer that the person has or had a tendency to act in a particular way or have a particular state of mind; and
- Infer that the person behaved in accordance with that tendency on another occasion (*R v **Cittadani* [2008] NSWCCA 256; *R v Harker* [2004] NSWCCA 427. See *also Jacara v Perpetual Trustees WA* (2000) 106 FCR 51).
2. For example, if tendency evidence is led that proves that a person behaves in a violent manner when in a particular state of mind, the jury may use that evidence to find that that person acted in the same manner at the time of the alleged offence (*R v Andrews* [2003] NSWCCA 7; *R v Li* [2003] NSWCCA 407; c.f. *R v **Cakovski* (2004) 149 A Crim R 21).
## Demonstrating an improper sexual interest
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[^5]: This includes evidence that is actually admitted under the tendency rule, as well as evidence that is admitted for another purpose but which is admissible under that rule (see above).
[^6]: In some cases this is described as an improper sexual “relationship” with the complainant. However, it is not the relationship *between* the parties that is of relevance here. It is the accused’s (often unilateral) attraction to, or interest in, the complainant that is of importance. The term “sexual relationship” is therefore avoided wherever possible.
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4.17-c5-s2
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4.17 Uses of Tendency Evidence
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3. One common type of tendency evidence is “guilty passion” evidence. This consists of evidence that the accused has acted in a sexual way towards the complainant on one or more other occasions (*Velkoski v R* (2014) 45 VR 680; *HML & Ors v R* (2008) 235 CLR 334; *R v Mckenzie-McHarg* [2008] VSCA 206; *R v AH* (1997) 42 NSWLR 702; *Rolfe v R* [2007] NSWCCA 155; *R v ELD* [2004] NSWCCA 219; *R v **Greenham* [1999] NSWCCA 8).[^6]
4. “Guilty passion” evidence may be admitted as tendency evidence, to prove that the accused had an improper sexual interest in the complainant and a willingness to express that interest (*HML & Ors v R* (2008) 235 CLR 334; *R v Mckenzie-McHarg* [2008] VSCA 206; *JLS v The Queen* (2010) 28 VR 328; *Rolfe** v R* [2007] NSWCCA 155;).
5. The probative value of “guilty passion” stems from the:
ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person (*R v Bauer* [2018] HCA 40 at [51]).
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[^5]: This includes evidence that is actually admitted under the tendency rule, as well as evidence that is admitted for another purpose but which is admissible under that rule (see above).
[^6]: In some cases this is described as an improper sexual “relationship” with the complainant. However, it is not the relationship *between* the parties that is of relevance here. It is the accused’s (often unilateral) attraction to, or interest in, the complainant that is of importance. The term “sexual relationship” is therefore avoided wherever possible.
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4.17-c5-s3
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4.17 Uses of Tendency Evidence
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6. Evidence can only be used to show a sexual interest in the complainant if it is admitted as tendency evidence. Where evidence is relevant and admissible for another purpose, it cannot be used to show a sexual interest unless the conditions for admission as tendency evidence are met (*Evidence Act 2008* s 95; *Ritchie v R* [2018] VSCA 31 at [36]–[45]).
7. The tendency evidence that demonstrates the accused’s sexual interest with the complainant does not need to constitute criminal acts (*R v EF* [2008] VSCA 213; *R v McKenzie-McHarg* [2008] VSCA 206).
8. Where the prosecution alleges a series of sexual acts over a period of time against a single complainant, both charged and uncharged acts may be admissible as tendency evidence to show the accused had a sexual interest in the complainant and was willing to act on that interest. Provided the conduct relied on as tendency evidence is not far removed in time, and is of similar gravity to the charged acts, it is not necessary for there to be special features or independent support for the tendency evidence (*R v Bauer* [2018] HCA 40 at [48]).
9. However, in the unusual case where there is only one uncharged act which is remote in time and of different gravity to the charged acts, then some special feature will be necessary to give that uncharged act significant probative value (*IMM v The Queen* (2016) 257 CLR 300 at [61]–[64]).
10. Although evidence of a single prior opportunistic incident will usually not be capable of supporting an inference that the accused had an improper sexual interest in the complainant (*R v Young* [1998] 1 VR 402), such evidence must be considered alongside the other evidence given in the case. The tendency evidence does not, by itself, need to prove the existence of a sexual interest (*R v DD* (2007) 19 VR 143).
## Tendency Evidence and Multiple Sexual Complainants
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[^5]: This includes evidence that is actually admitted under the tendency rule, as well as evidence that is admitted for another purpose but which is admissible under that rule (see above).
[^6]: In some cases this is described as an improper sexual “relationship” with the complainant. However, it is not the relationship *between* the parties that is of relevance here. It is the accused’s (often unilateral) attraction to, or interest in, the complainant that is of importance. The term “sexual relationship” is therefore avoided wherever possible.
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4.17-c5-s4
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4.17 Uses of Tendency Evidence
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11. Prior to *Hughes v The Queen* (2017) 344 ALR 187, Victorian jurisprudence had held that it was not permissible to speak in general terms about a sexual interest in multiple complainants. Instead, the focus was on the nature of the accused’s conduct, rather than the accused’s state of mind (*Velkoski v R* (2014) 45 VR 680, [173(f)], [234]).
12. In *Hughes v The Queen* (2017) 344 ALR 187, the majority rejected this limitation, noting that s 97(1) explicitly provides for tendency evidence to prove a state of mind; a sexual interest in young children is a particular state of mind; and, in cases involving charges of sexual offending against young children, proof of that state of mind may have significant probative value (at [32]).
13. Where there are multiple complainants, some feature of the alleged acts will be necessary to link the allegations together before the evidence can have significant probative value. This may stem from a special, particular or unusual feature, such as a brazen disregard of the risk of discovery (*Hughes v The Queen* (2017) 344 ALR 187; *R v Bauer* [2018] HCA 40 at [58]–[59]; *Bauer v The Queen* [2017] VSCA 176 at [62]; *McPhillamy v The Queen* [2018] HCA 52), or a particular relationship between the accused and the complainant (*Wardell v The King *[2025] NSWCCA 26, [104]).
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[^5]: This includes evidence that is actually admitted under the tendency rule, as well as evidence that is admitted for another purpose but which is admissible under that rule (see above).
[^6]: In some cases this is described as an improper sexual “relationship” with the complainant. However, it is not the relationship *between* the parties that is of relevance here. It is the accused’s (often unilateral) attraction to, or interest in, the complainant that is of importance. The term “sexual relationship” is therefore avoided wherever possible.
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4.17-c6-s1
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4.17 Directions About Tendency Evidence and Reasoning
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## Directions About Tendency Evidence and Reasoning
1. The need for directions about tendency evidence and reasoning depends on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015* ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
2. Tendency evidence is a form of ‘other misconduct evidence’. The content of the direction is specified in *Jury** Directions Act 2015* Part 4, Division 2.
## Directions where tendency evidence adduced by prosecution
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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4.17-c6-s2
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4.17 Directions About Tendency Evidence and Reasoning
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3. Where tendency evidence is adduced by the prosecution and a direction is necessary, the trial judge must:
1. Identify how the evidence is relevant to the existence of a fact in issue; and
1. Direct the jury not to use the evidence for any other purpose; and
2. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
3. If the evidence only forms part of the case against the accused, inform the jury of this fact (*Jury Directions Act 2015* s 27(2)).
4. In giving the direction, the judge does not need to:
1. Explain what the jury should consider in deciding whether to use the evidence as tendency evidence;
4. Identify impermissible uses of the evidence;
5. Refer to any other matter (*Jury Directions Act 2015* s 27(3)).
5. The *Jury Directions Act 2015* abolishes the common law obligations in relation to directions on tendency evidence. This includes the obligation to warn the jury against substitution reasoning[^7] or reasoning that the accused is the kind of person likely to have committed the offences charged (see *Alec v The King* [2023] VSCA 208, [78] and compare *R v Grech* [1997] 2 VR 609. But c.f. *Briggs v The King* [2024] VSCA 80, [54]).
6. Judges should avoid using the term “uncharged acts” when describing tendency evidence, as it may invite speculation about why no charges were laid (*HML & Ors v The Queen* (2008) 235 CLR 334; *R v McKenzie-McHarg* [2008] VSCA 206).
7. The judge must explain to the jury how the tendency evidence is relevant in the case. This requires the judge to link the use of the evidence to the issues in the case. It is not sufficient for him or her merely to describe the evidence as giving rise to a tendency to act in a certain way (*R v Li* [2003] NSWCCA 407; *R v Martin* [2000] NSWCCA 332).
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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4.17-c6-s3
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4.17 Directions About Tendency Evidence and Reasoning
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8. To assist with this task, it will usually be helpful to have the prosecutor describe each step along the path (or paths) of reasoning which the jury may follow to infer the accused’s guilt from the evidence (*HML & Ors v The Queen* (2008) 235 CLR 334 per Hayne J).
9. If the tendency evidence is admitted to demonstrate the accused’s sexual interest in the complainant, and is admissible on all charges, then it is proper for the trial judge to tell the jury that they might use the evidence when assessing whether the accused had a sexual interest in the complainant and a tendency to act upon it which the prosecution contends makes it more likely that the accused committed the charged offence(s). It is not necessary to give individual use directions for each charge when there is complete cross-admissibility (*R v Bauer *(2018) 266 CLR 56, [86]; *Franklin v The King *[2024] VSCA 213, [134]–[139]).
10. The language of “guilty passion” is inappropriate and should not be used with the jury. The focus of the jury must be on whether the evidence proves that the accused had a sexual interest in the complainant and a willingness to act on that interest. Such evidence should be described as demonstrating a “sexual interest” (*HML & Ors v The Queen* (2008) 235 CLR 334; *R v Ball* [1911] AC 47; *R v BJC *(2005) 13 VR 407; *R v Sadler* (2008) 20 VR 69; *Rolfe v R* [2007] NSWCCA 155; *Velkoski v R* (2014) 45 VR 680).
11. Judges should also avoid use of the term “relationship evidence” to describe the respective positions of the parties and the unilateral actions of the accused (*HML & Ors v The Queen* (2008) 235 CLR 334 per Kiefel J; *Frawley v R* (1993) 69 A Crim R 208; *R v **Nieterink* (1999) 76 SASR 56).
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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12. While tendency evidence can be used to demonstrate the accused had a sexual interest in the complainant and had acted on that interest, it cannot “be used in a more general way as demonstrating that an accused person was the sort of person who would commit the offences in question”. Such reasoning is known as “impermissible propensity reasoning” (*Briggs v The King* [2024] VSCA 80, [52]).
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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### Standard of proof
13. At common law it was once thought that tendency evidence adduced to show that the accused had a sexual interest in the complainant could not be used unless the jury was satisfied that the evidence proved that interest beyond reasonable doubt (*R v Sadler* (2008) 20 VR 69; *DJV v R* [2008] NSWCCA 272; *DTS v R* [2008] NSWCCA 329; *JDK v R* [2009] NSWCCA 76; *R v MM* (2000) 112 A Crim R 519). In relation to single complainant cases, this common law rule was abolished by *R v Bauer* [2018] HCA 40 at [80].
14. The requirement for proof of tendency evidence beyond reasonable doubt is also prohibited by the *Jury Directions Act 2015*. Under the Act, the only matters which must be proved beyond reasonable doubt are the elements of the offence and the absence of any defences. The judge may not direct the jury that any other matters need to be proved beyond reasonable doubt (*Jury Directions Act 2015* ss 61, 62). See Circumstantial Evidence and Inferences for further information.
15. No different principle applies between charged and uncharged acts relied on as tendency evidence. The question in each case will be whether the tendency is proved on the whole of the evidence and, if so, the tendency may be relied on in proof of the charges. In performing this exercise, it is not appropriate to invite the jury to apply any standard of proof to individual items of evidence relied on in proof of the tendency (*JS v The Queen* [2022] NSWCCA 145, [43]; *DPP v **Roder** *[2024] HCA 15, [26]–[28]; *Wardell v The King *[2025] NSWCCA 26, [44]–[70], [97]–[98]).
## Directions where tendency evidence adduced by the accused about a co-accused
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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16. Where tendency evidence is adduced by an accused about a co-accused, the prosecution or the co-accused may request a direction about that evidence.
17. In giving a direction about that evidence, the trial judge must
1. Identify how the evidence is relevant to the existence of a fact in issue; and
6. Direct the jury not to use the evidence for any other purpose; and
7. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the co-accused (*Jury Directions Act 2015* s 28(2)).
18. In giving the direction, the judge does not need to:
1. Explain what the jury should consider in deciding whether to use the evidence as tendency evidence
8. Identify impermissible uses of the evidence
9. Refer to any other matter (*Jury Directions Act 2015* s 28(3)).
## Directions where evidence is *not* admissible as tendency evidence
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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4.17 Directions About Tendency Evidence and Reasoning
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19. Under the *Jury Directions Act 2015* ‘other misconduct evidence’ is defined as:
1. Coincidence evidence;
10. Tendency evidence;
11. Evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
12. Evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (*Jury Directions Act 2015* s 26).
20. The defence may ask the judge to warn the jury not to use other misconduct evidence which is not tendency evidence as tendency evidence (*Jury Directions Act 2015* s 29).
21. The judge may also warn the jury against the risk of misusing evidence as tendency evidence where the evidence does not fall within the definition of ‘other misconduct evidence’.
22. A warning against using evidence as tendency evidence warns the jury *not* to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, and to use that conclusion as evidence of guilt (*R v ODG (No 2)* (2000) 50 NSWLR 433; *Martin v State of Tasmania* [2008] TASSC 66; *Qualtieri** v R* [2006] NSWCCA 95; *R v Chan* [2002] NSWCCA 217; *R v Conway* (2000) 98 FCR 204; *Gipp v The Queen* (1998) 194 CLR 106; *R v ATM* [2000] NSWCCA 475; *FMT v R* [2011] VSCA 165; *R v M, BJ* (2011) 110 SASR 1).
23. If uncharged acts are led as part of a multiple charge indictment, the judge should make it clear that the warning against tendency reasoning applies to both the charged and uncharged acts (see *R v CF* [2004] VSCA 212; *R v DD* (2007) 19 VR 143).
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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24. When giving a warning against tendency reasoning, the judge should not refer to the accused having a “propensity” or a “criminal propensity” or a “tendency”. Instead, judges should describe the evidence as demonstrating a “pattern of behaviour” or, in sexual offence cases, a “sexual interest”.
25. When evidence is admitted which discloses paedophilia, but which is not admitted as tendency evidence (because the requirements of ss97 and 101 have not been met), directions against tendency reasoning are especially important. This is because such evidence is highly prejudicial (see *R v J (No 2)* [1998] 3 VR 602; *R v DCC* (2004) 11 VR 129; *R v T* (1996) 86 A Crim R 293; *R v DD* (2007) 19 VR 143).
26. It may not be necessary to warn the jury against tendency reasoning when the accused is charged with a “course of conduct” offence (such as persistent sexual abuse), and the component acts are separately charged (*KRM v The Queen* (2001) 206 CLR 221). See also 7.3.23 Persistent Sexual Abuse of Child (From 1/7/17).
27. There also may not be any need to warn the jury against tendency reasoning when there is little or no risk that the jury will use the evidence to engage in such reasoning (*Jury Directions Act 2015* s 29(2)). In some cases, a warning against tendency reasoning can increase the risk of the jury engaging in impermissible tendency reasoning and defence counsel may ask the judge not to give the direction (*FDP v R* (2008) 74 NSWLR 645; *R v DH* [2000] NSWCCA 360; *R v **Bastan* [2009] VSCA 157.
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[^7]: A warning against substitution reasoning is a warning that the jury must not substitute evidence of other misconduct for the specific activity which is the subject of the offence charged. This can also be expressed as a warning that the offence charged can be proved only by evidence relating to it, and not by evidence of extraneous conduct (see *R v Beserick* (1993) 30 NSWLR 510, 516; *R v Grech* [1997] 2 VR 609, 614).
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## Timing of the Charge
1. Short directions on the use of tendency evidence which are consistent with *Jury Directions Act 2015 *Part 4, Division 2, should be given at the time the evidence is led. Detailed directions may also be given in the final charge (see *Jury Directions Act 2015* s 10; *R v Grech* [1997] 2 VR 609; *R v **Beserick* (1993) 30 NSWLR 510; *Qualtieri** v R* [2006] NSWCCA 95).
Last updated: 4 April 2025
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4.17.1 Charge: Tendency Evidence (General Charge)
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# 4.17.1 Charge: Tendency Evidence (General Charge)
This charge may be given where a direction has been requested regarding tendency evidence called by the prosecution.
A short direction based on this charge should be given at the time the evidence is led.
## Use of Tendency Evidence
Members of the jury, part of the prosecution case is that NOA has demonstrated a tendency, or in other words, a pattern of behaviour, to [*describe alleged tendency*].
[*Identify relevant tendency evidence.*]
The prosecution argues that [*summarise** prosecution arguments on the use of tendency evidence*]. In response, the defence says [*summarise** **defence** arguments on the use of tendency evidence*].
If you find that NOA had a tendency to [*describe relevant tendency*], then you can use that to find that it is more likely that NOA committed [*identify relevant offences*].[^2]
You must keep this evidence in perspective. It is only one part of the prosecution’s case.[^3] It is not enough to convict the accused that you find [he/she] [*identify the tendency evidence*] or [*identify the alleged tendency*]. You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.
As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [*describe relevant tendency*] and so is more likely to have committed the offence(s) charged. You must not use the evidence for any other purpose.
Last updated: 2 October 2018
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[^2]: In some cases, it will be necessary to identify intermediate steps through which the tendency evidence makes NOA’s guilt more likely, such as by enhancing the credibility of the complainant.
[^3]: If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.
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4.17.2 Charge: Tendency Evidence (Sexual Interest Evidence)
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# 4.17.2 Charge: Tendency Evidence (Sexual Interest Evidence)
This charge may be given if evidence that the accused had an improper sexual interest in a single complainant has been admitted as tendency evidence. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
A short direction based on this charge should be given at the time the evidence is led.
## Permissible Uses of "Sexual Interest" Evidence
Members of the jury, part of the prosecution case is that NOA has demonstrated a sexual interest in the complainant and a willingness to act on that interest.[^2]
[*Identify relevant tendency evidence*.]
The prosecution argues that [*summarise prosecution arguments on the use of tendency evidence*]. In response, the defence says [*summarise defence arguments on the use of tendency evidence*].
If you find that NOA had a sexual interest in the complainant and was willing to act on that interest, then you can use that to find that it is more likely that NOA committed [*identify relevant offences*].[^3]
The prosecution also says that this evidence sets the scene in which the alleged offences took place. Without the evidence, there is a risk that NOC’s evidence would be incomplete and may even be incomprehensible.[^4]
[*Explain how the provision of contextual information can assist the jury. Possibilities include helping the jury to understand*:
- The *complainant’s alleged conduct or state of mind* at the time of the offence, such as why s/he might have submitted to the accused’s demands or did not complain about the alleged offending);
- The *accused’s alleged conduct or state of mind* at the time of the offence, such as why s/he felt able to act in a particularly brazen manner);
- The *circumstances* of the alleged offence, such as to show that the complainant does not say that the offence occurred "out of the blue".]
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[^2]: This statement should be adapted based on the specific tendency alleged, including any circumstances which are said to form part of the circumstances in which the accused acts on the alleged tendency.
[^3]: In some cases, it will be necessary to identify intermediate steps through which the tendency evidence makes NOA’s guilt more likely, such as by enhancing the credibility of the complainant.
[^4]: If the unhealthy sexual interest evidence is not relevant on a contextual basis, this section of the charge must be omitted.
[^5]: If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.
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4.17.2 Charge: Tendency Evidence (Sexual Interest Evidence)
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You must keep this evidence in perspective. It is only one part of the prosecution’s case.[^5] It is not enough to convict the accused that you find [he/she] [*identify the tendency evidence, e.g*. “committed the uncharged acts”] or had acted on a sexual interest in NOC in the past. You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.
As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of helping you understand the circumstances surrounding the alleged offending and to show that NOA had a sexual interest in NOC and a willingness to act on that interest, and so s/he is more likely to have committed the offence(s) charged. You must not use the evidence for any other purpose.
Last updated: 14 May 2024
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[^2]: This statement should be adapted based on the specific tendency alleged, including any circumstances which are said to form part of the circumstances in which the accused acts on the alleged tendency.
[^3]: In some cases, it will be necessary to identify intermediate steps through which the tendency evidence makes NOA’s guilt more likely, such as by enhancing the credibility of the complainant.
[^4]: If the unhealthy sexual interest evidence is not relevant on a contextual basis, this section of the charge must be omitted.
[^5]: If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.
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4.17.3 Charge: Tendency Evidence (General Defence Evidence)
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# 4.17.3 Charge: Tendency Evidence (General Defence Evidence)
This charge may be given where a direction has been requested regarding tendency evidence called by the defence.
A short direction based on this charge should be given at the time the evidence is led.
This charge should be adapted if the defence calls other forms of other misconduct evidence.
## Use of Tendency Evidence
Members of the jury, you have heard evidence that NO3P[^2] has demonstrated a tendency, or in other words, a pattern of behaviour, to [*describe alleged tendency, **e.g.* “behave violently after drinking alcohol”].
[*Identify relevant tendency evidence.*]
The defence argues that [*summarise** **defence** arguments on the use of tendency evidence*]. In response, the prosecution says [*summarise** **defence** arguments on the use of tendency evidence*].
You must take this evidence into account when deciding whether the prosecution has proved, beyond reasonable doubt, that [*identify relevant fact in issue*].
Last updated: 29 June 2015
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[^2]: Name of third person.
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4.17.4 Charge: Warning against Tendency Reasoning
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# 4.17.4 Charge: Warning against Tendency Reasoning
I now need to give you a warning not to misuse some of the evidence.
You will remember that the prosecution has led evidence that [*identify relevant evidence*].
As a matter of law, you must not use this evidence to reason that the accused has a shown a pattern of behaviour to commit crimes such as [*identify relevant offence*], or to [*identify other relevant tendency*].
This evidence is only relevant to prove [*identify permissible use of the evidence*].
You must decide the case only on the evidence of what NOA has done. Do not be tempted to reason that s/he’s done something similar before, and so s/he is the kind of person who would commit this kind of offence. That would be unfair to the accused. You would be judging the case on the accused’s history, rather than on the evidence of what s/he did or did not do on this occasion. Remember, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused.
Last updated: 22 March 2023
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# 4.18 Coincidence Evidence
## Overview
1. Part 4, Division 2 of the* Jury Directions Act 2015* regulates jury directions on ‘other misconduct evidence’. This is defined as:
1. Coincidence evidence, as defined in the Evidence Act 2008;
1. Tendency evidence, as defined in the Evidence Act 2008;
2. Evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
3. Evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (Jury Directions Act 2015 s 26).
2. This topic examines coincidence evidence as a form of ‘other misconduct evidence’.
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4.18 What is "Coincidence Evidence"?
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## What is "Coincidence Evidence"?
1. "Coincidence evidence" is evidence which uses the improbability of two or more events occurring coincidentally to prove that:
- A person performed a particular act; or
- A person had a particular state of mind (*Evidence Act 2008 *s 98).
2. The use of "coincidence evidence" relies on a process of inferential reasoning, in which the jury:
- Infers from evidence of similarities between two or more events, and the circumstances in which the events occurred, that is improbable that the events occurred coincidentally; and
- Infers from the improbability of such a coincidence the existence of a relevant fact in issue (*Evidence Act 2008 *s 98. See also *R v DCC *(2004) 11 VR 129).[^2]
3. One of the events relied upon may be an event the occurrence of which is a fact in issue in the proceeding (*Evidence Act 2008 *s 98).
## How do "coincidence evidence" and "tendency evidence" differ?
4. Care must be taken to distinguish "coincidence evidence" from "tendency evidence" (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R *[2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
5. "Tendency evidence" is evidence of a tendency that a person has or had, which the jury can use to infer a fact in issue (*Evidence Act 2008* s 97).
6. While the evidence that constitutes "tendency evidence" and "coincidence evidence" may seem similar, the type of inferential reasoning used by the jury differs for each type of evidence:
- In relation to coincidence evidence, the jury relies on the *improbability of events occurring other than in the way suggested* to infer the fact in issue ("coincidence reasoning");
- In relation to tendency evidence, the jury relies on the fact that a person *has a tendency to** act in a certain way* to infer the fact in issue ("tendency reasoning") (*R v Nassif *[2004] NSWCCA 433).[^3]
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[^2]: See "Use of Coincidence Evidence" below for a discussion of some of the facts in issue that coincidence evidence can be used to prove.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.18 What is "Coincidence Evidence"?
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7. Judges must therefore separately determine whether to admit evidence as coincidence evidence and whether to admit evidence as tendency evidence. In doing so, they must consider how the parties seek to use the evidence, as that will determine which admissibility test applies and what directions the jury must be given (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R *[2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
8. See 4.17 Tendency Evidence for further information concerning tendency evidence.
## How do "coincidence", "relationship" and "context" evidence differ?
9. "Coincidence evidence" must also be distinguished from:
- "Relationship Evidence": Evidence that demonstrates the nature of a relevant relationship, which may be used as circumstantial evidence of the accused’s guilt (see, e.g. *R v BJC* (2005) 13 VR 407; *Gipp v R *(1998) 194 CLR 106; *R v Vonarx* [1999] 3 VR 618); and
- "Context Evidence": Evidence that provides essential background information, which may help the jury to assess and evaluate the other evidence in the case in a true and realistic context (see, e.g. *R v AH* (1997) 42 NSWLR 702; *R v Camilleri* [1999] VSC 159; *R v Sadler* (2008) 20 VR 69).
10. See 4.19 Other Forms of Other Misconduct Evidence for further information concerning relationship and context evidence.
## Determining whether evidence is "coincidence evidence"
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[^2]: See "Use of Coincidence Evidence" below for a discussion of some of the facts in issue that coincidence evidence can be used to prove.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.18 What is "Coincidence Evidence"?
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11. It is important for judges to determine whether evidence is sought to be admitted and used as coincidence evidence, tendency evidence, relationship evidence and/or context evidence. That determination will affect the admissibility test to apply and the directions to be given.
12. As this can be a difficult task, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see *HML & **Ors** v R *(2008) 235 CLR 334 (Hayne J)).
13. The prosecution should clearly articulate how it says the jury should use the relevant evidence. This will involve identifying the fact in issue and how the evidence is relevant to that fact in issue. If that use would involve coincidence reasoning (see above), then the evidence must be treated as coincidence evidence (see, e.g. *Qualtieri** v R *[2006] NSWCCA 95;* R v Li* [2003] NSWCCA 407;* R v AH* (1997) 42 NSWLR 702;* R v **Ngatikaura* [2006] NSWCCA 161;* R v **Cakovski* (2004) 149 A Crim R 21; *Jacobs v R* [2017] VSCA 309, [15]).
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[^2]: See "Use of Coincidence Evidence" below for a discussion of some of the facts in issue that coincidence evidence can be used to prove.
[^3]: Thus, while tendency evidence and coincidence evidence are often referred to together (as though tendency evidence is invariably also coincidence evidence and vice versa), this is not correct. Sections 97 and 98 describe two different paths of reasoning (*R v Nassif* [2004] NSWCCA 433; *Gardiner v R* [2006] NSWCCA 190; *KJR v R* [2007] NSWCCA 165).
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4.18 Admissibility of Evidence of Similar Events
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## Admissibility of Evidence of Similar Events
1. Evidence that two or more similar events occurred may be admitted:
- In order to prove a fact in issue, due to the improbability that the events occurred coincidentally; or
- For another purpose.
## Admitting evidence to prove the improbability of coincidence
2. The "coincidence rule" states that evidence is generally[^4] not admissible *as *coincidence evidence (i.e., for the purposes of proving a fact in issue due to the improbability of events occurring coincidentally) unless:
- The party seeking to adduce the evidence gave reasonable notice of its intention to do so; and
- The court thinks that the evidence will have significant probative value (*Evidence Act 2008* s 98).
3. Where it is the *prosecution *who seeks to lead coincidence evidence about the *accused*, the evidence will only be admissible if its probative value substantially outweighs any prejudicial effect that it may have on the accused (*Evidence Act 2008* s 101).
4. There does not need to be an exact parallel of circumstances (a "striking similarity") before two or more events may be admitted as coincidence evidence. Instead, the admissibility of coincidence evidence depends on the facts in issue, the nature and circumstances of the other acts, the degree of similarity between the events, the relationship between any relevant parties and all the circumstances of the case (*PG v R *[2010] VSCA 289; *CW v R *[2010] VSCA 288. See also *S v R *[2008] NSWCCA 330; *AE v R *[2008] NSWCCA 52; *R v Ellis* (2003) 58 NSWLR 700).
5. The provisions concerning the admissibility of coincidence evidence replace the common law rules regarding similar fact evidence (*R v Ellis* (2003) 58 NSWLR 700; *CW v R *[2010] VSCA 288).
6. Care should be taken when examining older cases on the scope of the coincidence rule. Before 2007, the coincidence rule in *Uniform Evidence* jurisdictions only applied to "related events", which were defined as events that were substantially and relevantly similar and where the circumstances were substantially similar. The new coincidence rule has broader application.[^5]
## Admitting evidence for another purpose
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[^4]: The coincidence rule is subject to a number of exceptions and exclusions. See, e.g. *Evidence Act 2008* ss 94, 98(2).
[^5]: See *Uniform Evidence Law: Report*, ALRC Report 102, 11.19–11.25 for a discussion of the change and the reasons behind it.
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4.18 Admissibility of Evidence of Similar Events
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7. The "coincidence rule" only governs the admission of evidence that is sought to be adduced *as *coincidence evidence. It does not prevent evidence of similar events being admitted for another purpose (e.g. to provide context for the offence) (see, e.g. *R v Quach* [2002] NSWCCA 519; *Conway v R* (2000) 98 FCR 204; *FDP v R* (2008) 74 NSWLR 645; *R v Cornwell* (2003) 57 NSWLR 82; *R v Lock* (1997) 91 A Crim R 356).
8. Such evidence does not need to comply with the coincidence rule in order to be admitted. Instead, its admissibility is governed by the general test of relevance in Part 3.1 of the *Evidence Act 2008*,and the discretions contained in Part 3.11 of that Act (*R v Quach* [2002] NSWCCA 519; *Conway v R* (2000) 98 FCR 204; *FDP v R* (2008) 74 NSWLR 645; *R v Cornwell* (2003) 57 NSWLR 82; *R v Lock* (1997) 91 A Crim R 356).
9. While evidence of prior similar events may be admitted for a non-coincidence purpose, if that evidence is not admissible under the coincidence rule, it cannot be used to prove a fact in issue due to the improbability that the events occurred coincidentally (*Evidence Act 2008 *s 95).
10. This means that where evidence is admitted for another purpose, the jury may only use it as coincidence evidence if it also satisfies the requirements of ss 98–101 (*Evidence Act 2008 *s 95; *R v OGD (No 2) *(2000) 50 NSWLR 433; *KJR v R *[2007] NSWCCA 165).
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[^4]: The coincidence rule is subject to a number of exceptions and exclusions. See, e.g. *Evidence Act 2008* ss 94, 98(2).
[^5]: See *Uniform Evidence Law: Report*, ALRC Report 102, 11.19–11.25 for a discussion of the change and the reasons behind it.
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11. This issue can be important in trials involving multiple charges. In such trials, questions may arise as to whether evidence admitted to prove one charge can be used as coincidence evidence to prove a matter relevant to one of the other charges. In answering this question, the court must determine whether that evidence would be admissible under the coincidence rule if the charges were heard separately (*R v Nassif* [2004] NSWCCA 433; *R v Ellis* [2004] HCA Trans 488).
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[^4]: The coincidence rule is subject to a number of exceptions and exclusions. See, e.g. *Evidence Act 2008* ss 94, 98(2).
[^5]: See *Uniform Evidence Law: Report*, ALRC Report 102, 11.19–11.25 for a discussion of the change and the reasons behind it.
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4.18 Uses of Coincidence Evidence
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## Uses of Coincidence Evidence
1. Where evidence is admissible under the coincidence rule, that evidence can be used to prove a number of matters, including:
- That an offence was committed;
- That it was the accused who committed the offence;
- That the accused was acting voluntarily;
- That the accused had a particular state of mind; or
- That several independent witnesses or complainants have given truthful evidence;
- That several witnesses have made the same errors because of collusion (see, e.g. *Makin v Attorney-General of New South Wales* [1894] AC 57; *Pfennig v R *(1995) 182 CLR 461; *DPP v Boardman* [1975] AC 421; *R v Anderson *(2000) 1 VR 1; *Wilson v R *(1970) 123 CLR 334; *R v Buckley* (2004) 10 VR 215).
## Coincidence Reasoning and Identity
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2. Coincidence evidence may be used to establish the identity of the offender where the *modus operandi* used makes it likely that the same person is responsible for two or more particular offences (*Pfennig v R *(1995) 182 CLR 461; *R v **Straffen* [1952] 2 QB 911; *Thompson and Wran v R *(1968) 117 CLR 313; *R v Dupas (No 2)* (2005) 12 VR 601).
3. In such cases, the evidence can only be used if the jury is satisfied that both offences were committed by the same person *and* that the accused committed one of the offences (*Pfennig v R *(1995) 182 CLR 461; *Sutton v R *(1984) 152 CLR 528).
4. For evidence of *modus operandi* to be admitted to establish the identity of the offender (due to a connection between the *modus operandi* used on other occasions and the *modus operandi* of the charged offence), that evidence must demonstrate more than the "stock in trade" of that type of offending (*Sutton v R *(1984) 152 CLR 528; *R v Clune* [1995] 1 VR 489; *CW v R *[2010] VSCA 288. See also *R v Rajakaruna* (2004) 8 VR 340; *Thompson and Wran v R *(1968) 117 CLR 313; *CGL v DPP* (2010) 24 VR 486; *PNJ v DPP* (2010) 27 VR 146).
## Coincidence Reasoning and Credit
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5. Coincidence evidence may be used to support the credibility of witnesses (see, e.g. *R v Buckley* (2004) 10 VR 215; *R v DCC* (2004) 11 VR 129; *R v **Papamitrou* (2004) 7 VR 375; *R v Rajakaruna* (2004) 8 VR 340; *R v Glennon (No 2)* (2001) 7 VR 631).
6. This use of coincidence evidence relies on the improbability of independent witnesses making similar allegations against the accused. The jury may reason that the similarities are more than can be explained by coincidence, and so their evidence is mutually supporting (*R v Buckley* (2004) 10 VR 215; *R v DCC* (2004) 11 VR 129; *R v **Papamitrou* (2004) 7 VR 375; *R v Rajakaruna* (2004) 8 VR 340; *R v Glennon (No 2)* (2001) 7 VR 631; *Saoud v The Queen* (2014) 87 NSWLR 481, [43]; *Addo v The Queen* (2022) 108 NSWLR 522, [67]–[69]; *Page v The Queen *[2015] VSCA 357).
7. In determining whether coincidence evidence has significant probative value, the possibility of collusion, collaboration or innocent infection is not relevant, unless those possibilities rise to a level where it would not be open to the jury rationally to accept the evidence (*R v Bauer* [2018] HCA 40, [69]). Previous decisions holding that the possibility of collusion destroys the probative value of coincidence evidence have been overruled (compare *Velkoski v R* [2014] VSCA 121; *Murdoch v R* (2013) 40 VR 451; *PNJ v R* (2010) 27 VR 146;* BSJ v R* (2012) 35 VR 475).
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8. If judges decide to admit coincidence evidence in circumstances where there is a risk of collusion, collaboration or innocent infection, the judge must warn that jury that it must find that the evidence from each witness was not affected by other witnesses before acting on the coincidence evidence (*Murdoch v R* (2013) 40 VR 451, [134]; *PNJ v R* (2010) 27 VR 146; *BSJ v R* (2012) 35 VR 475).
9. Whether coincidence evidence can be used to support credit will depend in part on what facts are in issue in the trial. Where the fact in issue is the state of mind of an alleged victim or third party (such as whether a complainant consented to sexual penetration), it is not permissible to use the evidence of other complainants to draw an inference about a particular complainant’s state of mind (see *Jacobs v R* [2017] VSCA 309; *Phillips v R* (2006) 225 CLR 303).
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## Directions About Coincidence Evidence and Reasoning
1. The need for a direction about coincidence evidence and reasoning will depend on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015* ss 12, 14, 15, 16, 17). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
2. Coincidence evidence is a form of ‘other misconduct evidence’. The content of the direction is specified in *Jury Directions Act 2015 *Part 4, Division 2.
## Directions where coincidence evidence adduced by prosecution
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3. Where coincidence evidence is adduced by the prosecution and a direction is necessary, the trial judge must:
1. Identify how the evidence is relevant to the existence of a fact in issue; and
1. Direct the jury not to use the evidence for any other purpose; and
2. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
3. If the evidence only forms part of the case against the accused, inform the jury of this fact (Jury Directions Act 2015 s 27(2)).
4. In giving the direction, the judge does not need to:
1. Explain what the jury should consider in deciding whether to use the evidence as coincidence evidence
4. Identify impermissible uses of the evidence
5. Refer to any other matter (Jury Directions Act 2015 s 27(3)).
5. The *Jury Directions Act 2015* abolishes the common law obligations in relation to directions on coincidence evidence. This includes the obligation to warn the jury against substitution reasoning (compare* R v Grech* [1997] 2 VR 609).
6. The judge will need to explain the concept of "coincidence reasoning" to the jury. For examples on how this can be done, see* R v **Straffen* [1952] 2 QB 911; *Pfennig v R* (1995) 182 CLR 461.
7. See "Uses of Coincidence Evidence" above for an outline of how coincidence evidence may be relevant to the existence of a fact in issue.
8. As part of directing the jury about coincidence reasoning, the judge must identify the similarities that are relied upon to support coincidence reasoning. This requires more than giving a short and generic summary of each of the occasions relied upon, and expecting the jury to pick out the relevant similarities from those summaries (*Feng v The King* [2023] VSCA 196, [63]).
9. Where evidence is admitted allowing different uses of coincidence reasoning, the judge must carefully direct the jury about how to keep those different types of reasoning separate (see *Feng v The King* [2023] VSCA 196, [64]).
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10. The directions must also give effect to any restrictions on the admissibility and use of the evidence, directing the jury not to use the evidence for identified impermissible purposes (see *Feng v The King* [2023] VSCA 196, [65]–[67]).
11. The judge must not direct the jury to use coincidence evidence in a manner which is not relevant in the circumstances of the case. For example, judges must not invite the jury to use coincidence reasoning to determine whether the acts were voluntary and intentional when the only issue was whether the acts were committed at all (*Murdoch v R* (2013) 40 VR 451).
12. Similarly, where the probative value lies in the improbability of similar false accounts (see the fifth bullet at paragraph [27] above), it is not appropriate to direct the jury that the coincidence evidence can prove the identity of the offender, or that it was unlikely the accused's acts occurred by chance, where those matters are not in issue. It may also risk inviting the jury to reason that the accused has a tendency to commit acts in a particular manner, even if the evidence has not been admitted for a tendency purpose (*Addo v The Queen* (2022) 108 NSWLR 522, [84]–[88]).
13. Reasoning by reference to identity, or the accused’s actions is, in that context, likely to involve tendency reasoning (*Addo v The Queen* (2022) 108 NSWLR 522, [84]–[88]).
14. To assist with this task, it will usually be helpful to have the prosecutor describe each step along the path (or paths) of reasoning which the jury may follow to infer the accused’s guilt from the evidence (see, e.g. *HML & **Ors** v R* (2008) 235 CLR 334 (Hayne J)).
15. Judges should avoid using the term "uncharged acts" when describing coincidence evidence, as it may invite speculation about why no charges were laid (*HML & **Ors** v R *(2008) 235 CLR 334; *R v McKenzie–McHarg* [2008] VSCA 206).
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16. As coincidence reasoning is a particular species of inferential reasoning, the judge should give a direction on inferences and relate the topic of inferences to the coincidence reasoning direction (*R v Buckley *(2004) 10 VR 215. See also 3.6 Circumstantial Evidence and Inferences).
17. The judge should not direct the jury that they must be satisfied that the evidence reveals a "striking similarity" or other such feature before they can use the evidence. The direction must focus on the purposes for which the evidence may be used and not the reasons for its admissibility (*R v **Papamitrou* (2004) 7 VR 375).
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### Standard of proof
18. As coincidence evidence is circumstantial evidence, it generally does not need to be proved beyond reasonable doubt (*Jury Directions Act 2015* ss 61, 62).
19. While it has been held that an exception exists in the case of sequential coincidence reasoning from other charged offences (see *Dempsey v The Queen* [2019] VSCA 224, [76]), it unclear whether this exception continues to exist following the High Court’s decision in *DPP v **Roder** *[2024] HCA 15, which held that a jury should not be directed to apply a standard of proof (either at common law or under the *Jury Directions Act 2015*) to other charged acts relied on as tendency evidence.
## Directions where coincidence evidence adduced by the accused about a co-accused
20. Where coincidence evidence is adduced by an accused about a co-accused, the prosecution or the co-accused may request a direction about that evidence.
21. In giving a direction about that evidence, the trial judge must
1. Identify how the evidence is relevant to the existence of a fact in issue; and
6. Direct the jury not to use the evidence for any other purpose; and
7. Direct the jury that it must not decide the case based on prejudice arising from what it has heard about the co-accused (Jury Directions Act 2015 s 28(2)).
22. In giving the direction, the judge does not need to:
1. Explain what the jury should consider in deciding whether to use the evidence as coincidence evidence;
8. Identify impermissible uses of the evidence;
9. Refer to any other matter (Jury Directions Act 2015 s 28(3)).
## Directions where evidence is *not* admissible as coincidence evidence
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23. Where evidence is *not* admissible as coincidence evidence, but there is a risk that the jury will use the evidence to engage in coincidence reasoning, the judge may need to warn the jury not to do so (see* R v OGD (No 2) *(2000) 50 NSWLR 433; *Martin v State of Tasmania* [2008] TASSC 66; *Qualtieri** v R *[2006] NSWCCA 95; *R v Chan* [2002] NSWCCA 217; *R v Conway *(2000) 98 FCR 204; *Gipp v R *(1998) 194 CLR 106; *R v ATM* [2000] NSWCCA 475).
24. If uncharged acts are led as part of a multiple charge indictment, the judge should make it clear that the warning against coincidence reasoning applies to both the charged and uncharged acts (see *R v CF* [2004] VSCA 212; *R v DD* (2007) 19 VR 143; [2007] VSCA 317).
25. There may not be any need to warn the jury against coincidence reasoning when there is little or no risk that the jury will use the evidence to engage in such reasoning. In some cases, a warning against coincidence reasoning can increase the risk of the jury engaging in impermissible coincidence reasoning (*FDP v R* (2008) 74 NSWLR 645; *R v DH* [2000] NSWCCA 360; *R v **Bastan* [2009] VSCA 157).
26. The need for a direction against coincidence reasoning depends on whether the direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015* ss 12, 14, 16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
### Relationship with separate consideration warning
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27. The warning against coincidence reasoning does not need to use different language to that used in the separate consideration warning, and does not need to be clearly distinct from that warning. The basic requirement is that the warning sufficiently protect against the risk of the jury using impermissible reasoning (see *R v DCC* (2004) 11 VR 129; *R v LRG* (2006) 16 VR 89).
28. A discrete warning against coincidence reasoning will not normally be required when a separate consideration warning is given, as the separate consideration warning will usually protect against such reasoning (*KRM v R *(2001) 206 CLR 221; *R v **Loguancio* (2000) 1 VR 235; *R v Ellul* [2008] VSCA 106. See also 1.8.1 Charge: Separate Consideration – Multiple Accused and/or 1.8.2 Charge: Separate Consideration – Multiple Counts).
29. When both a warning against coincidence reasoning and a separate consideration warning are given, it will generally not be necessary to expressly relate the warnings. The separate consideration warning will usually adequately protect against the dangers of impermissible reasoning in relation to other *charged* acts. However, in some cases, it may be necessary to explicitly explain to the jury that the prohibition on coincidence reasoning applies to both charged and uncharged acts (*R v PLK* [1999] 3 VR 567; *R v DCC* (2004) 11 VR 129).
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## Warning Against Tendency Reasoning
1. When evidence is led as "coincidence evidence" and not as "tendency evidence", defence counsel may request a warning that the jury not use the evidence as tendency evidence (Jury Directions Act 2015 s 29).
2. See 4.17 Tendency Evidence for information concerning the content of such a warning.
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## Timing of the Charge
1. Short directions on the use of coincidence evidence which are consistent with the *Jury Directions Act 2015* Part 4 Division 2 should be given at the time the evidence is led. Detailed directions may also be given in the final charge (see *Jury Directions Act 2015* s 10(2); *R v Grech* [1997] 2 VR 609; *R v **Beserick* (1993) 30 NSWLR 510; *Qualtieri** v R *[2006] NSWCCA 95).
Last updated: 25 June 2024
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4.18.1 Charge: Coincidence Evidence
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# 4.18.1 Charge: Coincidence Evidence
This charge may be given where a direction has been requested regarding coincidence evidence called by the prosecution.
A short direction based on this charge should be given at the time the evidence is led**.**
Members of the jury, the prosecution has led evidence that [*identify relevant coincidence evidence*].
## Using Coincidence Evidence to bolster credit
[*If the evidence is used to bolster the credit of witnesses or complainants, add the following shaded section.*]
The prosecution says that this evidence is relevant because it is most unlikely that several [witnesses/complainants], each of whom seems to be independent of the other, would give such similar accounts unless those accounts were both truthful and accurate. In other words, the prosecution says that it is most unlikely that several such [witnesses/complainants] would independently have told the same lie.
I direct you that it is open to you to reason in this way. However, before you can do so, you must first accept that such similarities as you find in the witness’ evidence are not the product of any collusion on their part, or of innocent contamination.[^2]
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[^2]: If evidence emerges of an opportunity for contamination between the witnesses, the judge may add that following sample direction:
You will recall that NOW1 said, during examination in chief, that he spoke to NOW2 about the allegations for 10 minutes on the day he went to the police station. In cross-examination, NOW1 admitted that the conversation may have taken half an hour. There is no suggestion that NOW1 and NOW2 have jointly fabricated their accounts. However, before you can use the existence of similarities in their accounts, you must exclude a reasonable possibility that NOW1 or NOW2 subconsciously changed his account, and introduced those similarities, because of that conversation.
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4.18.1 Using Coincidence Evidence to Prove a Voluntary Act
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## Using Coincidence Evidence to Prove a Voluntary Act
[*If the evidence is used to prove that the accused acted voluntarily, add the following shaded section.*]
The prosecution say that this evidence is relevant to prove that the accused acted voluntarily when s/he [*describe relevant act*]. The prosecution argues that there is such a similarity between [*describe relevant coincidence evidence*] and the evidence of [*identify relevant act*] that it is most unlikely that the accused was not acting voluntarily when [*describe relevant acts*].
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4.18.1 Using Coincidence Evidence to Rebut a Defence Argument
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## Using Coincidence Evidence to Rebut a Defence Argument
[*If the evidence is used to rebut a **defence** argument, add the following shaded section*.]
The prosecution say that this evidence is relevant because it allows you to conclude that [*describe relevant **defence** argument in the negative, **e.g**.* “the deceased did not die of natural causes”]. The prosecution argues that there is such a similarity between this evidence and the evidence of [*identify relevant evidence*] that it is most unlikely that [*describe relevant **defence** argument in the positive*, e.g. that the deceased died of natural causes]. Remember that, while the accused raised this matter as a defence, the onus of proof rests on the prosecution.
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4.18.1 Using Coincidence Evidence to Prove the Identity of the Offender
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## Using Coincidence Evidence to Prove the Identity of the Offender
[*If evidence of several separate offences is used to prove the identity of the offender, add the following shaded section*.]
The prosecution say the similarities between [*identify similarly committed offence*] and the [*describe charged offence*] are so great that you should find that the same person is responsible for each offence. The prosecution then say that if you find NOA committed [*identify similarly committed offence*], then you can use that to conclude that s/he also committed [*identify charged offence*].
[*Identify relevant prosecution and **defence** evidence and arguments on whether the jury should use the coincidence evidence.*]
You must keep this evidence in perspective. It is only one part of the prosecution’s case.[^3] As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [*describe relevant purpose*]. You must not use the evidence for any other purpose.
Last updated: 9 March 2017
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4.19 Other Forms of Other Misconduct Evidence
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# 4.19 Other Forms of Other Misconduct Evidence
## Overview
1. Part 4, Division 2 of the *Jury Directions Act 2015* regulates jury directions on ‘other misconduct evidence’. This is defined as:
1. coincidence evidence, as defined in the Evidence Act 2008;
1. tendency evidence, as defined in the Evidence Act 2008;
2. evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue;
3. evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed (Jury Directions Act 2015 s 26).
2. This topic examines the forms of ‘other misconduct evidence’ identified in paragraphs (c) and (d) above.
3. See 4.17 Tendency Evidence and 4.18 Coincidence Evidence for further information on the admissibility and uses of those other forms of ‘other misconduct evidence’.
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4.19 Evidence of discreditable acts which are indirectly relevant or which provides context
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## Evidence of discreditable acts which are indirectly relevant or which provides context
1. At common law, evidence of previous wrongdoing by the accused may be admissible as indirectly relevant to show that the accused’s acts were for a guilty purpose, rather than an innocent purpose. This might include:
- previous acts of drug trafficking by the accused (see, e.g. *Harriman v R* (1989) 167 CLR 590;* R v Quach* (2002) 137 A Crim R 345; *Ivanoff v R* [2015] VSCA 116);
- previous acts of violence by the accused towards the complainant (*R v PFD* (2001) 124 A Crim R 418; *R v Basten* [2009] VSCA 157; *Wilson v R* (1970) 123 CLR 334).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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2. These forms of evidence have been treated at common law as ‘relationship evidence’ falling outside the requirements of the tendency rule and the coincidence rule and may qualify as ‘other misconduct evidence’ under paragraph (c) of the definition.
3. In addition, evidence that provides the jury with essential background information that allows the jury to assess and evaluate the other evidence may be admissible at common law as ‘context evidence’ (see, e.g. *R v AH* (1997) 42 NSWLR 702).
4. Such evidence may help the jury assess and evaluate other evidence given in the case in a complete and realistic context. In particular, the evidence can be used:
1. to explain the complainant’s conduct or state of mind. For example, such evidence may explain conduct that would otherwise seem surprising or unlikely, such as submitting to the accused’s demands, failing to complain about the accused’s actions or maintaining a relationship despite past acts of domestic violence (*B v R* (1992) 175 CLR 599; *R v Beserick* (1993) 30 NSWLR 510; *Rodden v R* [2008] NSWCCA 53; *KTR v R* [2010] NSWCCA 271; *Clayton v The King *[2024] VSCA 203, [134]).
1. to explain the accused’s conduct or state of mind. For example, the history between the accused and the complainant may explain why the accused felt able to act in a particularly brazen manner (*R v Josifoski* [1997] 2 VR 68; Gipp v R (1998) 194 CLR 106; c.f. *Qualtieri v R* [2006] NSWCCA 95, [121]). Similarly, previous exposure to the criminal law may demonstrate that the accused knew or was reckless about some matter, such as prescribed quantities for drug offences, dangers of accepting imports from unknown persons, or the $10,000 threshold for reportable transactions under the Cash Transactions Reports Act 1988 (*Ivanoff v R* [2015] VSCA 116; *Lin v R* [2018] VSCA 100).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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2. to explain the circumstances of the alleged offence. This may prevent the jury from forming a false impression that the complainant’s allegations arose ‘out of the blue’. That is, it may remove the implausibility that might otherwise be attributed to the complainant’s account due to the way each party is said to have behaved if the conduct alleged were thought to be isolated events (*R v Leonard* (2006) 67 NSWLR 545, [48]–[52] (Hodgson JA); *R v Loguancio* (2000) 1 VR 235; *KRM v R* (2001) 206 CLR 221; *B v R* (1992) 175 CLR 599).
5. There is not yet any guidance from Victoria on the meaning of the phrase ‘other discreditable acts … that are not directly relevant’. The definition of ‘other misconduct evidence’ appears designed to have a wide scope and operate where there is a risk that the jury may misuse the evidence and decide the case based on the prejudicial quality of the evidence rather than its legitimate probative purpose (see *Jury Directions Act 2015* s 27).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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6. In South Australia, *Evidence Act 1929 *s 34P limits the admissibility of ‘discreditable conduct evidence’. The primary purpose of this provision is to restrict the admissibility of common law propensity evidence. South Australian authorities have interpreted the provision to operate where conduct is wrongful or morally repugnant, such that it reflects poorly on the accused, and is sufficiently serious that it might cause the jury to engage in impermissible ‘bad person’ reasoning (*Sadler v The King *[2023] SASCA 63, [27]). This might include angry, aggressive or manipulative as a spiritual leader in the context of sexual abuse of a follower (see *Sidhu (a pseudonym) v The King *[2025] SASCA 26). However, evidence that the accused had a temper, and shouted at hospitality workers, did not engage the provision, where it was led to explain why the complainant was afraid of the accused (*Barnes (a pseudonym) v The King *[2025] SASCA 53, [36]). The context of any alleged conduct matters when deciding whether it was discreditable. Conduct that, by itself, may be innocuous may become discreditable due to preceding activity (see *Heng v The King *[2025] SASCA 57, [49]–[52]). As Kourakis CJ explained, the term is not limited to criminal offending and “includes those immoral, unethical or unjust departures from broadly accepted social standards which attract the opprobrium of right thinking members of the community”. A distinction exists between uncivil behaviour which does not breach ethical standards, and aggressive exploitation of power imbalances for selfish purposes at the expense of the human dignity of others (*Barnes (a pseudonym) v The King *[2025] SASCA 53, [2]–[3]).
7. Based on the explanatory material, the section appears designed to cover the forms of evidence previously recognised at common law as ‘relationship evidence’ and ‘context evidence’ (see *Jury Directions Bill 2015*, Explanatory Memorandum, clause 26.
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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8. Where evidence would be considered ‘relationship evidence’ at common law but does not fit within the definition of ‘other misconduct evidence’, judges will need to develop suitable directions based on the submissions of the parties and the needs of the case and may be informed by Division 2 of Part 4 of the *Jury Directions Act 2015* (see, for example, *Lin v R* [2018] VSCA 100; *R v Iuliano* [1971] VR 412; *Wilson v R* (1970) 123 CLR 334).
9. In doing so, judges must take care to avoid giving directions based only on the label applied to the evidence, rather than the issues in the case, the relevance of the evidence and any risk of misuse (see *BBH v R* (2012) 245 CLR 499 (Hayne J)).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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## Context and tendency
10. The difference between context evidence and tendency evidence is that while tendency evidence bears directly on the probability of the existence of a fact in issue, the purpose of context evidence is to explain why the parties might have behaved in a way that otherwise might seem extraordinary or inexplicable (*Ritchie v The Queen *[2019] VSCA 202, [125]). In this way, context evidence can support the complainant’s credibility, without inviting the jury to engage in tendency or coincidence reasoning (*Clayton v The King *[2024] VSCA 203, [144]; *Qualtieri v The Queen *(2006) 171 A Crim R 463, [119]).
## Other misconduct evidence and incriminating conduct
11. There is potential for a single piece of evidence to qualify as both ‘other misconduct evidence’ and ‘incriminating conduct’ evidence. For example, in *Kakule v The King*, the accused attempted to force his way into the complainant’s home after she spoke to police about the accused’s alleged sexual offending. The South Australian Court of Appeal held that the conduct was ‘discreditable conduct’, and so engaged the legislative provisions designed to deal with tendency, coincidence, relationship and context evidence. While the primary use of the evidence was as incriminating conduct to show a consciousness of guilt, the court held that the jury should have been warned not to engage in ‘bad person’ reasoning. It is, however, important to note that under the relevant South Australian provisions, warnings about potential misuse of evidence as propensity evidence are mandatory, unlike the approach under the *Jury Directions Act 2015* (see *Kakule v The King *[2025] SASCA 20, [64]-[65]).
## Admissibility of ‘Other Misconduct Evidence’
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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12. Under the *Evidence Act 2008*, evidence is admissible if it is relevant (directly or indirectly) to a fact in issue (*Evidence Act 2008 *s 56).
13. This will depend on the nature of the evidence and the issues in the case. For example, evidence of previous acts of violence when one of the parties is intoxicated may not be relevant to a case where there is no evidence of intoxication (*R v Lubik* [2010] VSC 465).
14. The court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused (*Evidence Act 2008* s 137).
15. The court may also exclude or limit the use of such evidence using the general discretions contained in *Evidence Act 2008* ss 135–136.
16. The party tendering the evidence must precisely identify the uses of the evidence (see above), and demonstrate how the evidence is relevant to issues in the case (*Gipp v R* (1998) 194 CLR 106; *Tully v R* (2006) 230 CLR 234; *HML & Ors v R* (2008) 235 CLR 334).
17. Evidence of ‘relationship’ or ‘context’ is admissible under the *Evidence Act 2008* provided it meets the test of relevance. The evidence does not need to satisfy the tendency rule or the coincidence rule (*DPP v Martin* [2016] VSCA 219, [105]–[106]; *R v Murdoch* (2013) 40 VR 451 (Redlich and Coghlan JJA; Priest JA contra)).
18. ‘Context evidence’ must be admitted only with great caution.[^2] While such evidence may be relevant, it may only be minimally probative and may be highly prejudicial. A judge must carefully weigh the probative value of context evidence against the prejudicial effect of disclosing unlawful or disreputable conduct of the accused on other occasions (*Tully v R *(2006) 230 CLR 234; *R v AN* (2000) 117 A Crim R 176; *R v Marsh* [2000] NSWCCA 370).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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19. However, in other cases, context evidence may be evidence of 'cogency or force', such that the exclusion of context evidence could ground an interlocutory appeal on the basis that the exclusion of the evidence substantially weakens the prosecution case (*DPP v Martin* [2016] VSCA 219, [116]–[117]).
20. The context and relationship evidence must not relate to a state of affairs which is too remote in time from the alleged offending. The court must consider the particular circumstances and the length of delay between the last observed event and the alleged offending (*R v Iuliano* [1971] VR 412; *R v Lubik *[2010] VSC 465; *R v Tsingopoulos* [1964] VR 676; *Ellis v R* (2010) 30 VR 428; *R v Basten* [2009] VSCA 157).
21. In general, it is more difficult for the Crown to establish that a single incident is relevant as context evidence, compared to multiple acts (compare* CA v R* [2017] NSWCCA 324, [79] and *R v Young* (1996) 90 A Crim R 80).
22. In some cases, evidence of ‘relationship’ or ‘context’ may be admissible for some charges and inadmissible for other charges. The judge must examine the relevance, probative value and prejudice separately for each charge to determine whether the evidence is relevant to a fact in issue (*R v McNamara* [2002] NSWCCA 248).
23. Evidence of prior convictions should generally not be admitted as relationship or context evidence. Due to the extreme prejudice attaching to such evidence, it is unlikely to be admissible on this basis even if it is indispensable to the prosecution case (*Mokbel v R *[2010] VSCA 354).
24. Evidence of other sexual activity between the complainant and the accused can be admissible as context evidence, provided it meets the tests of relevance and is not excluded under *Evidence Act 2008* s 137 (*DPP v Martin* [2016] VSCA 219. See also *R v Bauer* [2018] HCA 40).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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25. In determining the relevance of other misconduct evidence led as context evidence, it will not be necessary to consider the accused's criminal responsibility. Issues such as doli incapax are not relevant to the admissibility of context evidence, because the relevance of the evidence must be assessed from the perspective of the victim, not the accused (*DPP v Martin* [2016] VSCA 219, [110]–[111]).
26. Where evidence is not led to enable tendency or coincidence reasoning, it is not subject to the admissibility requirements in *Evidence Act 2008* ss 97, 98 or 101 (*FDP v R* (2008) 74 NSWLR 645). However, the evidence cannot be used to prove a tendency or a coincidence (*Evidence Act 2008* s 95).
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[^2]: It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (*R v LRG* (2006) 16 VR 89; *Tully v R* (2006) 230 CLR 234; *R v GAE* (2000) 1 VR 198).
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## Determining the Relevance of Evidence
1. It is important for judges to determine whether the evidence is sought to be admitted and used as ‘relationship evidence’, ‘context evidence’, tendency evidence’ or ‘coincidence evidence’, and if so, how the evidence is relevant to the facts in issue. These determinations will affect the admissibility of the evidence, how the jury may use the evidence and the directions the judge may need to give.
2. As it can be difficult to differentiate between these types of evidence, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see, e.g. *HML & Ors v R* (2008) 235 CLR 334 per Hayne J).
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## Directions About Other Misconduct Evidence
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1. The need for any directions about other misconduct evidence will depend on whether a direction is sought or whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015* ss 12, 14, 16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
2. Where ‘other misconduct evidence’ is admitted, the content of directions is specified in *Jury Directions Act 2015* Part 4, Division 2. In other cases, the judge will need to tailor a direction to the needs of the case.
3. Under *Jury Directions Act 2015* Part 4, Division 2, when giving directions on other misconduct evidence the trial judge must:
1. identify how the evidence is relevant to the existence of a fact in issue; and
1. direct the jury not to use the evidence for any other purpose; and
2. direct the jury that it must not decide the case based on prejudice arising from what it has heard about the accused; and
3. if the evidence only forms part of the case against the accused, inform the jury of this fact (*Jury Directions Act 2015* s 27(2)).
4. In giving the direction, the judge does not need to:
1. explain what the jury should consider in deciding whether to use the evidence;
4. identify impermissible uses of the evidence;
5. refer to any other matter (*Jury Directions Act 2015* s 27(3)).
5. The judge may tell the jury not to reason that if it accepts the context evidence, it therefore follows that the accused is guilty of the charged acts. The jury cannot convict of the charged acts unless satisfied beyond reasonable that those acts occurred (*Clayton v The King *[2024] VSCA 203, [140]).
6. It is not sufficient for the judge to simply say that the evidence provides the jury with the context for the offences or evidence of a relationship. The judge must explain how such information is relevant to the facts in issue (*R v Nieterink* (1999) 76 SASR 56).
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7. Where evidence is led to show the context of the alleged offending, the judge should tell the jury that they may use the evidence to place the offences within a complete and realistic context. This may assist the jury to appreciate and evaluate other evidence in the case or make that evidence intelligible. Depending on the nature of the case, the evidence may do this by:
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- helping the jury understand the complainant’s alleged conduct or state of mind;
- helping the jury understand the accused’s alleged conduct or state of mind; or
- dispelling the erroneous impression that the conduct occurred ‘out of the blue’ (*R v VN *(2006) 15 VR 113; *R v Vonarx* [1999] 3 VR 618; *R v Loguancio* (2000) 1 VR 235; *R v Dolan* (1992) 58 SASR 501; *Rodden v R* [2008] NSWCCA 53).
8. Any directions that suggest that ‘context evidence’ may support a complainant’s credibility must be carefully limited:
- the judge must describe the precise way in which the evidence may be used (e.g. to explain the complainant’s failure to complain or protest, or to show that the complainant does not allege that the offences occurred ‘out of the blue’); and
- the judge must not suggest that the evidence provides general support for the conclusion that the accused acted in a similar manner on the occasion alleged, as that would be a form of tendency reasoning (*Qualtieri v R* [2006] NSWCCA 95).
9. Objective evidence that supports context evidence does not enhance a complainant’s credibility in a general sense (*Clayton v The King *[2024] VSCA 203, [145]–[149]).
10. No particular form of words is required for the direction. It must be tailored to the demands of the case, and must be clear, precise and directed (*R v Grech* [1997] 2 VR 609; *HML & Ors v R* (2008) 235 CLR 334; *R v McKenzie–McHarg *[2008] VSCA 206).
11. Judges should avoid using the term ‘uncharged acts’ when describing other misconduct evidence, as it may invite speculation about why no charges were laid (*HML & Ors v R* (2008) 235 CLR 334; *R v McKenzie–McHarg* [2008] VSCA 206; *DPP v Martin* [2016] VSCA 219, [101]).
## Standard of proof
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12. As other misconduct evidence is circumstantial evidence, it will not need to be proved beyond reasonable doubt (*Jury Directions Act 2015* s 61).
13. The* Jury Directions Act 2015* expressly overrides common law to the contrary, including the rule attributed to* R v Sadler* (2008) 20 VR 69 (*Jury Directions Act 2015 *s 62).
14. Where evidence is relied on as context evidence, the judge should not give any instruction on the standard of proof (*DPP v Martin* [2016] VSCA 219, [113]).
15. Judges must not instruct the jury that they only need to be satisfied of the evidence on the balance of probabilities (*R v Werry* [2009] VSCA 94; *R v FJB* [1999] 2 VR 425;* R v Loguancio* (2000) 1 VR 235; *Gipp v R* (1998) 194 CLR 106).
## Directions where other misconduct evidence adduced by the accused about a co-accused
16. Where ‘other misconduct evidence’ is adduced by an accused about a co-accused, the prosecution or the co-accused may request a direction about that evidence (*Jury Directions Act 2015 *s 28).
17. In giving a direction about that evidence, the trial judge must
(a) identify how the evidence is relevant to the existence of a fact in issue; and
(b) direct the jury not to use the evidence for any other purpose; and
(c) direct the jury that it must not decide the case based on prejudice arising from what it has heard about the co-accused (*Jury Directions Act 2015 *s 28(2)).
18. In giving the direct, the judge does not need to:
1. explain what the jury should consider in deciding whether to use the evidence as coincidence evidence;
2. identify impermissible uses of the evidence;
3. refer to any other matter (*Jury Directions Act 2015 *s 28(3)).
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## Warning Against Tendency Reasoning
1. When ‘other misconduct evidence’ which is not ‘tendency evidence’ is adduced, defence counsel may request a warning that the jury not use the evidence as tendency evidence (*Jury Directions Act 2015 *s 29).
2. See 4.17 Tendency Evidence for information concerning the content of such a warning.
3. A judge must give very careful directions when there is evidence that can be used as both tendency and context, and other evidence that can be used only for context. The judge must instruct the jury that any directions about the use of evidence as both tendency and context do not apply to the second group of evidence. Otherwise the judge will impermissibly expand the prosecution’s case, and allow the jury to use evidence which has not met the requirements of *Evidence Act 2008 *s 97 (see *Milky v The King *[2024] VSCA 136, [21]–[33]).
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## Timing of the Charge
1. Short directions on the use of relationship evidence which are consistent with* Jury Directions Act 2015 *Part 4, Division 2 should be given at the time the evidence is led. Detailed directions may then be given in the final charge (see, e.g.* Jury Directions Act 2015* s 10(2); *R v Beserick *(1993) 30 NSWLR 510; *R v Grech* [1997] 2 VR 609;* Qualtieri v R* [2006] NSWCCA 95).
Last updated: 23 June 2025
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# 4.19.1 Charge: Other Forms of Other Misconduct Evidence
This charge may be given if 'other misconduct evidence within the meaning of s 26 of the* Jury Directions Act 2015* is led and the evidence is not tendency evidence or coincidence evidence.
A short direction based on this charge should be given at the time the evidence is led.
## Use of Other Misconduct Evidence
Members of the jury, the prosecution has led evidence that [*list all relevant other misconduct evidence*]. This evidence is not directly related to [the offence charged/any of the offences charged].
The prosecution says that this evidence is relevant because it shows [*explain the relevance of the evidence*. *Examples of relevant purposes include:*
- The *complainant’s alleged conduct or state of mind* at the time of the offence, such as why s/he might have submitted to the accused’s demands or did not complain about the alleged offending;
- The *accused’s alleged conduct or state of mind** *at the time of the offence, such as why s/he felt able to act in a particularly brazen manner;
- The *circumstances* of the alleged offence, such as to show that the complainant does not say that the offence occurred "out of the blue";
- The *accused’s intention or motive* (e.g. by establishing that a state of animosity existed between the parties, thus making it less likely that the accused’s acts were accidental);
- The *nature of the accused’s conduct* on a particular occasion (e.g. by establishing a history of drug transactions between the accused and another person that were likely to continue, thus making it less likely that the accused’s association with that person on a particular occasion was innocent);
- The *complainant’s state of mind* at the time of the offence (e.g. by establishing that the complainant in a sexual offence case hated the accused, making it less likely that s/he would consent to sexual intercourse)].
You must keep this evidence in perspective. It is only one part of the prosecution’s case.[^2] As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [*describe relevant purpose*]. You must not use the evidence for any other purpose.
Last updated: 29 June 2015
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[^2]: If the other misconduct evidence is the whole of the prosecution case, then this sentence should be omitted.
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4.19.2 Charge: Other forms of Other Misconduct Evidence (Evidence about a Co-Accused)
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# 4.19.2 Charge: Other forms of Other Misconduct Evidence (Evidence about a Co-Accused)
This charge may be given when the accused adduces other misconduct evidence about a co-accused.
A short direction based on this charge should be given at the time the evidence is led.
## Use of Other Misconduct Evidence
Members of the jury, NOA1[^2] has led evidence about NOA2[^3] that [*describe relevance of other misconduct evidence*].
[*Identify relevant other misconduct evidence.*]
NOA1 argues that this evidence shows that [*describe relevance of other misconduct evidence to a fact in issue and identify relevant defence arguments*]. NOA2 responds that [*describe NOA2’s response, including relevant defence arguments*]. The prosecution says that [*describe relevant prosecution evidence and arguments*].
This evidence has been led only for the purpose of [*describe relevant purpose*]. You must not use the evidence for any other purpose. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about NOA2.
Remember that while NOA1 has led this evidence, the onus of proof remains on the prosecution to prove its case against NOA1 and NOA2 beyond reasonable doubt. The fact that NOA1 has called this evidence does not mean that this shifts to NOA1 in any way.
Last updated: 29 June 2015
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[^2]: Name of accused who led other misconduct evidence about a co-accused.
[^3]: Name of co-accused.
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4.20 Unfavourable Witnesses
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# 4.20 Unfavourable Witnesses
## Common Law Has Been Abrogated
1. The common law concerning hostile witnesses has been abrogated by *Evidence Act 20008 *s 38 (*R v Milat*, NSWSC, 23/4/1996).
2. This means that it is no longer necessary for judges to differentiate between expected and unexpected evidence from a witness. Section 38 draws no such distinction (*R v Milat*, NSWSC, 23/4/1996).
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4.20 A Party May Cross-Examine Its Own Witnesses
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## A Party May Cross-Examine Its Own Witnesses
1. With the leave of the court, a party who calls a witness may cross-examine that witness about:
- Evidence the witness gives that is unfavourable to the party;
- Matters about which the witness may reasonably be supposed to have knowledge, and which it appears the witness is not making a genuine attempt to give evidence about; or
- Whether the witness has, at any time, made a prior inconsistent statement (*Evidence Act 2008 *s 38).
2. Cross-examination under s 38 must be *about* one of the three matters listed above. A party cannot undertake wide-ranging cross-examination on any matter it wishes (*R v Le* (2002) 54 NSWLR 474; *R v Hogan* [2001] NSWCCA 292).
3. However, cross-examination under s 38 is not limited to *directly* questioning the witness about one of the three listed matters. A party may question the witness about topics related to the three listed matters (*R v Le* (2002) 54 NSWLR 474; *R v Hogan* [2001] NSWCCA 292).
4. A party may also (with the leave of the court) question the witness about matters relevant only to the witness’ credibility, with a view to shaking the witness’ credibility on the listed matters (*Evidence Act 2008* s 38(3); *R v Le* (2002) 54 NSWLR 474).[^2]
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[^2]: Any cross-examination about a witness’s credibility must comply with the provisions in Part 3.7 of the *Evidence Act 2008* (‘Credibility’).
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4.20 Leave of the Court is Required
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## Leave of the Court is Required
1. A party may only cross-examine a witness under s 38 with the leave of the court (*Evidence Act 2008 *s 38(1)).
2. The court’s leave is also required to question a witness about matters relevant only to the witness’ credibility (*Evidence Act 2008 *s 38(3)).
3. Applications under s 38 may be made in the absence of the jury and in the absence of the witness (see *Adam v R *(2001) 207 CLR 96; *R v Hogan* [2001] NSWCCA 292).
4. In determining whether to grant leave, the court must take into account the matters specified in ss 38(6) and 192(2) of the *Evidence Act 2008* (*Stanoevski v R *(2001) 202 CLR 115).
5. This topic addresses the directions the judge may give the jury when he or she grants leave under s 38. For information on when the judge should grant leave, and any limitations on cross-examination, see S Odgers, *Uniform Evidence Law*, [1.2.3240]–[1.2.3400].[^3]
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[^3]: Under s 38(1)(a), a judge may grant leave where the witness gives evidence that is ‘unfavourable’ to a party. Evidence is ‘unfavourable’ for this purpose when it is ‘not favourable’. This includes evidence of a witness who has genuinely forgotten the events in question (*R v Lozano*, NSWCCA, 10/6/97, *R v Souleyman* (1996) 40 NSWLR 712; *R v McRae* [2010] VSC 114).
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4.20 Jury Directions
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## Jury Directions
1. There are three main directions a judge may give when a witness is cross-examined under s 38:
1. A direction about his or her decision to grant leave under s 38;
1. A direction about prior inconsistent statements;
2. A warning about the unreliability of the evidence.
2. The need for any directions on an unfavourable witness will depend on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (*Jury Directions Act 2015* ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
## Decision to grant leave
3. A judge does not always need to inform the jury of his or her decision to grant leave under s 38 (*Lee v R *[2009] NSWCCA 259).
4. If the judge chooses to comment on the grant of leave, he or she may explain that cross-examination under s 38 is an unusual process, in that the witness gives evidence in response to leading questions, rather than providing an account in evidence-in-chief in response to non-leading questions (*R v Lam (Ruling No 9) *[2005] VSC 283).
5. In explaining the decision to grant leave, the judge must be careful not to suggest that the decision involves an adverse reflection on the witness’ credit (*Lee v R *[2009] NSWCCA 259).[^4]
6. It is not necessary to inform the jury of the detail of the decision to grant leave (*Lee v R *[2009] NSWCCA 259).
7. In some cases, it may necessary to warn the jury not to speculate on the reasons why the witness gave unfavourable or inconsistent evidence and must not draw any inference adverse to the accused from the witness’ behaviour (see *R v Sekhon*, Vic CA, 23/10/92).
## Prior inconsistent statements
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[^4]: For example, while the judge may inform the jury that he or she has determined that the witness has given evidence that is unfavourable (as that will usually be obvious), it would be dangerous to tell the jury of the terms of s 38(1)(b) or (c).
[^5]: See 4.21 Unreliable Evidence Warning for further information concerning each of these requirements.
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8. Where cross-examination under s 38 leads to evidence of a prior inconsistent statement being admitted, it may be appropriate to direct the jury about the use of that statement (see, e.g. *R v Lam (Ruling No 9) *[2005] VSC 283).
9. At common law, there was a particular need for directions on the weight of the evidence when the prior statement was more damaging to the accused than the witness’ evidence in court (*Morris v R* (1987) 163 CLR 454; *R v Perea* (1986) 2 Qd R 431; *R v Nguyen* (1989) 2 Qd R 72).
10. A grant of leave under s 38 does not neutralise the witness’ evidence or render it inherently worthless. The jury must decide what weight it will place on the witness’ evidence in light of any inconsistent statements and any other matters that may affect the witness’ reliability (*R v Zorad* [1979] 2 NSWLR 764; *Morris v R *(1987) 163 CLR 454).
11. See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for information concerning the circumstances in which a direction about prior inconsistent statements should be given, and the content of the direction.
## Unreliability warning
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[^4]: For example, while the judge may inform the jury that he or she has determined that the witness has given evidence that is unfavourable (as that will usually be obvious), it would be dangerous to tell the jury of the terms of s 38(1)(b) or (c).
[^5]: See 4.21 Unreliable Evidence Warning for further information concerning each of these requirements.
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12. While a judge may be required to give an unreliability warning about evidence admitted under s 38, the mere fact that leave to cross-examine a witness has been granted under s 38 does not mean that an unreliability warning must be given (*Lee v R *[2009] NSWCCA 259).
13. Unreliable evidence warnings are governed by *Jury Directions Act 2015* s 32. A s 32 warning may be given if:
1. The evidence in question is "of a kind that may be unreliable"; and
3. The party requesting the warning has identified the significant matters that may make the evidence unreliable (Jury Directions Act 2015 s 32).[^5]
14. Where evidence of a prior inconsistent statement is admitted, the judge may need to warn the jury about the unreliability of hearsay evidence (see 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements)).
15. Depending on the circumstances, an unreliable evidence warning may also be required on another ground (e.g. if the witness is criminally concerned in the events giving rise to the proceeding). See 4.21 Unreliable Evidence Warning for information about the grounds on which a warning may be required.
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[^4]: For example, while the judge may inform the jury that he or she has determined that the witness has given evidence that is unfavourable (as that will usually be obvious), it would be dangerous to tell the jury of the terms of s 38(1)(b) or (c).
[^5]: See 4.21 Unreliable Evidence Warning for further information concerning each of these requirements.
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4.20 Limiting the Use of Evidence Under s 136
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## Limiting the Use of Evidence Under s 136
1. A judge may limit the use of evidence given under s 38 if there is a danger that a particular use of the evidence might be:
- Unfairly prejudicial to a party; or
- Misleading or confusing (*Evidence Act 2008* s 136).
2. It will usually only be necessary to consider this matter when counsel applies for a s 136 order (*Pavitt v R* (2007) 169 A Crim R 452).
3. At common law, juries were generally prohibited from using hearsay evidence (such as a prior inconsistent statement) to prove the existence of the facts asserted in the representation, due to the potential unreliability of that evidence. It was the intention of the *Evidence Act 2008 *to change this position, and allow evidence that was admitted either as an exception to the hearsay rule, or for a non-hearsay purpose, to be used to prove the existence of asserted facts (see *Evidence Act 2008 *s 60).
4. Judges should therefore not automatically prevent previous representations that are admitted under the *Evidence Act 2008* from being used to prove the existence of any asserted facts. To do so would be to constrain the legislation by reference to common law rules and distinctions which the legislature has discarded (*Papakosmas v R *(1999) 196 CLR 297).
5. In determining whether to limit the use of previous representations, the judge should consider whether any warning under s 32 regarding the dangers of relying on hearsay evidence (see above) would limit the risk of unfair prejudice (see *R v BD* (1997) 94 A Crim R 131).
6. If the judge decides to limit the use of evidence under *Evidence Act 2008* s 136, he or she may instruct the jury about the effect of that decision (see *Jury Directions Act 2015* ss 14–16; *Aslett v R *[2006] NSWCCA 49; *R v Robinson* [2003] NSWCCA 188).
7. In contrast, if the judge does not limit the use of the evidence, there is generally no need to instruct the jury that it may use the evidence for a hearsay purpose. The jury will usually assume that it can use the evidence for a hearsay purpose without the need for a direction of law (*R v Hilder* (1997) 97 A Crim R 70).
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Last updated: 29 June 2015
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4.20.1 Charge: Unfavourable Witnesses
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# 4.20.1 Charge: Unfavourable Witnesses
This charge is designed to be given in cases where:
i) The prosecution has cross-examined one of its own witnesses under Evidence Act 2008 s 38;
ii) The witness has been cross-examined about a prior inconsistent statement (s 38(1)(c));
iii) Evidence of the prior inconsistent statement can be used for both a hearsay and non-hearsay purpose; and
iv) The evidence adduced in the cross-examination of the witness forms a significant part of the prosecution’s case.
The charge will need to be modified if:
i) The cross-examination was solely about one of the matters listed in ss 38(1)(a) or (b), and did not relate to a prior inconsistent statement;
ii) It was the defence who cross-examined one of its witnesses; or
iii) The judge has used s 136 to limit the use of the statement to a non-hearsay purpose.
The judge should discuss the proposed charge with counsel before instructing the jury. See 3.1 Directions Under Jury Directions Act 2015 for information on when the direction is required.
## Decision to Grant Leave
[*The following two paragraphs may be adapted and given immediately after the witness has given evidence.*]
You may have noticed that NOW gave evidence in a different manner from the other prosecution witnesses. Instead of providing an account in response to non-leading questions asked by the prosecution, his/her evidence was given in response to leading questions, as though the prosecution was cross-examining him/her. That is an unusual process, that was permitted due to a ruling I made.
You must not speculate on the reasons why this process was necessary in this case, or draw any inference adverse to the accused from this process. You must base your decision on the evidence you hear in court and must not allow different processes of questioning witnesses to distract you from the issues in the case and the need to assess the evidence objectively and impartially.
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4.20.1 Prior Inconsistent Statement
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## Prior Inconsistent Statement
One of the things NOW said in the evidence s/he gave in court was [*insert details of inconsistent statement made in court*]. However, the prosecution alleged that NOW had previously given a different version of events. [*Describe prior statement and identify alleged inconsistencies.*]
If you accept that NOW made this statement, there are two ways you can use it.
First, you can use the contents of the statement as evidence in the case. For example, you could use NOW’s statement that [*describe part of the statement*] as evidence that [*describe relevant asserted fact*].
Secondly, if you find that NOW’s statement is inconsistent with his/her account in court, you may use the statement when assessing his/her credibility and reliability. You may find that the fact that NOW had previously given an inconsistent account means that the evidence s/he gave in court is less likely to be truthful or accurate. You may therefore be less willing to accept his/her evidence. It is for you to determine whether or not to draw this conclusion from any inconsistencies you find.
You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.
If you do find that NOW’s statement is inconsistent with his/her evidence in court, you will have two different accounts from the same witness. It is for you to determine which account, if any, to believe.
[*If the witness may have had a reason or motive for giving inconsistent evidence, add the following shaded section.*]
In making your determination, you should take into account [*identify relevant factors, e.g**.* "any reasons NOW may have to give inconsistent evidence" or "any motive NOW may have to conceal or misinterpret facts"].
[*Summarise relevant evidence and arguments*.]
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4.20.1 Unreliability Warning
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## Unreliability Warning
[*In some cases it will be necessary to warn the jury about the *potential unreliability* of the evidence under Jury Directions Act 2015 s 32*. See 4.14.1 Charge: Unreliability of Hearsay Evidence* for an example of such a warning.*]
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4.20.1 Need for Caution
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## Need for Caution
[*Where a full s 32 warning is not necessary, but the jury should be warned about the need for caution before acting on a previous representation, add the following shaded section.*]
However, you should be cautious before acting on NOW’s out-of-court statement, rather than the evidence s/he gave in court on [oath/affirmation].
Last updated: 29 June 2015
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4.21 Unreliable Evidence Warning
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# 4.21 Unreliable Evidence Warning
## Overview
1. A party may request that the trial judge give a direction to the jury on evidence that may be unreliable, pursuant to* Jury Directions Act 2015* s 12 (*Jury Directions Act 2015* s 32(1)). This direction is referred to in this Charge Book as a ‘section 32 direction’.
2. Such a request must specify:
- The significant matters which may make the evidence unreliable; or,
- If the request relates to a child, the significant matters (other than solely the age of the child) which may make the evidence of the child unreliable (*Jury Directions Act 2015* s 32(2)).
3. If a party makes such a request, the trial judge must:
- Warn the jury that the evidence may be unreliable
- Inform the jury of the significant matters identified by the party (or the significant matters other than solely the age of the child, as the case requires) that the judge considers may cause the evidence to be unreliable
- Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (*Jury Directions Act 2015 *s 32(3)).
4. The judge need not give this direction if he or she considers that there are good reasons for not giving the direction (*Jury Directions Act 2015* s 15)
5. The parties and the trial judge must not warn or suggest to the jury that:
- Children as a class are unreliable witnesses, or that children’s evidence is inherently less reliable or credible than that of adults;
- A particular child’s evidence may be unreliable solely because of the age of the child; or
- It may be dangerous to convict on the uncorroborated evidence of a witness because that witness is a child (*Jury Directions Act 2015* s 33).
6. This topic addresses the general unreliability direction. For information on directions in relation to children, see 4.2 Child Witnesses.
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4.21 When must a s 32 unreliability warning be given?
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## When must a s 32 unreliability warning be given?
1. A s 32 unreliability warning usually must be given if:
- A party in a jury trial requests such a warning; and
- The evidence in question is "of a kind that may be unreliable".
2. However, a judge need not give such a warning if there are "good reasons" for not doing so (*Jury Directions Act 2015* s 15).
3. These issues are discussed in turn below.
## There must be a request for a warning
4. Generally, a judge is only required to give an unreliability warning pursuant to s 32 of the *Jury Directions Act 2015* if a party requests the warning (*Jury Directions Act 2015* s 32(1); *Singh v DPP (NSW)* (2006) 164 A Crim R 284, [38]).
5. Such a request must specify:
- The significant matters which may make the evidence unreliable; or,
- If the request relates to a child, the significant matters (other than solely the age of the child) which may make the evidence of the child unreliable (*Jury Directions Act 2015* s 32(2)).
6. A judge is also required to give this direction in the absence of a request where there are substantial and compelling reasons for giving a direction despite the absence of a request (*Jury Directions Act 2015* ss 12, 14, 15, 16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required.
7. Judges should not adopt a narrow interpretation of the scope of any request. Where the accused requests a warning, and identifies the relevance of s 32, that may be enough to require the judge to consider whether there is any basis for finding that the evidence is of a kind that may be unreliable, rather than only considering the bases identified by the accused. This is especially so where the dangers are obvious to a legally trained mind and concern critical evidence (*Kovachev v The King *[2024] VSCA 325, [15]-[32]).
## The evidence must be "of a kind that may be unreliable"
8. Section 32 applies to "evidence of a kind that may be unreliable". This is defined in s 31 to include the following kinds of evidence:
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 When must a s 32 unreliability warning be given?
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- Hearsay evidence (s 31(a));[^2]
- Admissions (s 31(a));[^3]
- Evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like (s 31(b);[^4]
- Evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial (s 31(c));[^5]
- Evidence given by a witness who is a prison informer (s 31(d));[^6]
- Oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused (s 31(e)).[^7]
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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9. The types of evidence described in ss 31(a), (c)–(e) all correspond to types of evidence where a warning was required at common law. In addition, such evidence can be readily identified without any evaluative judgment by the trial judge. Therefore, where a request concerns one of those four categories, the judge should accept that the evidence “is of a kind that may be unreliable” (*Hudson v R* [2017] VSCA 122, [46]).
10. In contrast, evidence under s 31(b) requires the court to assess whether the reliability of the evidence “may be affected” by the considerations described (*Hudson v R* [2017] VSCA 122, [47]).
11. Where a request is made in relation to s 31(b), the requesting party must demonstrate that there is a reasonable possibility that the evidence is of a kind that a jury acting rationally may consider the evidence to be unreliable (*Hudson v R* [2017] VSCA 122, [47]; *Allen v R* (2013) 39 VR 629, [37]).
12. In New South Wales, the courts have adopted two different elaborations on the test for deciding whether the equivalent to s 31(b) applies. Under one approach, the judge must examine the evidence to decide whether the witness’ reliability “may be affected” by one of the listed features. This is a test of possibility and does not require the judge to find that the evidence is unreliable (*R v Flood* [1999] NSWCCA 198).
13. Under the other approach, the judge should give a requested direction if the court has special knowledge about the deficiencies in the evidence which could not be expected of the general experience and understanding of the jury (*R v Stewart* (2001) 52 NSWLR 301).
14. Victorian courts have not needed to resolve this issue, and have instead adopted the test of whether is a reasonable possibility that the evidence is of a kind that a jury acting rationally may consider to be unreliable (*Hudson v R* [2017] VSCA 122, [47]; *Allen v R* (2013) 39 VR 629, [37]).
15. Whether evidence is of a kind that may be unreliable will generally be known before the evidence is given (*Movel** v The King *(2024) 75 VR 62, [165]).
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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16. Evidence is not ‘of a kind’ that may be unreliable merely because the judge has doubts about the reliability of the evidence, or to endorse a successful cross-examination regarding credit. The test is whether there are relevant characteristics or circumstances which make the evidence of a kind that may be unreliable, rather than whether the evidence appears to be false (*Movel** v The King *(2024) 75 VR 62, [165]).
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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## Non-Listed Categories
17. The listed categories of evidence are not exhaustive. Section 32 of the* Jury Directions Act 2015* also applies to any other evidence which is "of a kind that may be unreliable" (*R v Stewart* (2001) 52 NSWLR 301; *R v Covill* (2000) 114 A Crim R 111; *Hudson v R* [2017] VSCA 122, [40]; *Movel** v The King *(2024) 75 VR 62, [164]).[^8]
18. This phrase is likely to cover any of the kinds of evidence that were accepted as potentially unreliable by the common law, such as:
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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- Evidence of a witness with an accomplice–like motive to lie (*R v Ali* [2002] VSCA 194);
- Evidence from a prosecution witness who has received an indemnity from prosecution, or a sentencing benefit conditioned on his or her co-operation (*R v Stewart* (2001) 52 NSWLR 301; *R v Calabro* 12/11/1984 CCA Vic;* R v **Checconi** *(1988) 34 A Crim R 160; *R v **Powercor* (Australia) Ltd [2005] VSCA 163; *R v Smith & Turner *(1995) 80 A Crim R 491; *R v Heaney* [1999] VSCA 169; *R v Sharp* [2005] VSCA 44; *R v Strawhorn* (2008) 19 VR 101);
- Evidence of identification or description that would attract a common law warning but does not fall within the definition of "identification evidence" under the *Evidence Act 2008 *or the *Jury Directions Act 2015* (*R v Rose* (2002) 55 NSWLR 701; *Kanaan v R* [2006] NSWCCA 109);
- Evidence from a police informer (*R v Reardon & Ors* [2002] NSWCCA 203; *R v **Dellapatrona** and Duffield* (1993) 31 NSWLR 123);
- Evidence of an alternative suspect (*R v Faure* [1993] 2 VR 497; *R v Mitchell *[2006] VSCA 289;* R v Campbell* 14/11/1994 CCA Vic);
- Evidence based on memories asserted to have been recovered during hypnotherapy (*R v WB* (2009) 23 VR 319; [2009] VSCA 173;* R v **McFelin** *[1985] 2 NZLR 570; *R v Horsfall *(1989) 51 SASR 489; *R v Jenkyns* (1993) 32 NSWLR 712; *R v **Tillott* (1995) 38 NSWLR 1);
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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- Evidence based on the recollection of events alleged to have occurred many years earlier, where those memories may have been distorted by the passage of time (*Longman v R* (1989) 168 CLR 79; *Robinson v R *(1999) 197 CLR 162;* Crampton v R *(2000) 206 CLR 161);
- Evidence of a witness who has a poor criminal record or who is otherwise part of the criminal milieu (*R v Latina* 2/4/1996 Vic CCA; *R v Hickey* (1995) 89 A Crim R 554);
- Evidence of a witness who was alcohol or drug-affected at time of the events, whether voluntarily or by the alleged actions of the accused (*R v Maple *[1999] VSCA 52; *Hudson v R* [2017] VSCA 122);
- Evidence of a witness who is hostile towards the accused (*R v Faure* [1993] 2 VR 497; *R v **Kotzmann* [1999] 2 VR 123;* R v Hickey* (1995) 89 A Crim R 554);
- Evidence of a witness with a proven history of dishonesty (*R v Holt & Merriman* (1996) 87 A Crim R 82; *R v Hickey* (1995) 89 A Crim R 554).
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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19. Evidence may also be “of a kind that may be unreliable” because of a combination of circumstances (*Hudson v R* [2017] VSCA 122, [40]).
20. The phrase "evidence of a kind that may be unreliable" is not limited to the kinds of evidence that were accepted as potentially unreliable by the common law. It may also cover other types of evidence (*R v Stewart *(2001) 52 NSWLR 301; *R v Baartman* [2000] NSWCCA 298).
21. Where evidence does not fall within one of the categories accepted at common law or defined in s 31(a)–(e), it will be a question of judgment for the trial judge whether a warning is required. A warning will be necessary where the danger of the jury acting upon the evidence is real and substantial, and the potential unreliability of the evidence might not be fully perceived by the jury in the absence of a warning (*Hudson v R* [2017] VSCA 122, [52]; *R v Baartman* [2000] NSWCCA 298, [69]; *Young v R* [2015] VSCA 265; *Wade v The Queen* [2019] VSCA 168).
22. In assessing the risk that the jury will not appreciate the potential unreliability without a judicial warning, the court must consider both whether the jury can understand the individual bases of unreliability and the cumulative impact of the bases of unreliability (*Hudson v R* [2017] VSCA 122, [56]).
23. Assessing the risk that the jury will not appreciate the potential unreliability also requires the court to consider the context and significance of the evidence in question. For example, in *Hudson v R*, the Court pointed to the fact that the warning concerned the central Crown witness, the case depends on an assessment of the credibility and reliability of that witness and the witness had made prior inconsistent statements in his reporting to police, as factors that contributed to its conclusion that the unreliable evidence warning was required (see *Hudson v R* [2017] VSCA 122, [57]–[61]).
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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24. A s 32 warning is likely to significantly influence the jury’s assessment of the witness in question. For this reason careful reflection is necessary before applying s 32 to evidence that falls outside the categories described in s 31(a)–(e) (*RELC v R* (2006) 167 A Crim R 484, [80]). However, it is erroneous to elevate this need for reflection to a test of requiring good reasons before giving a warning in relation to a non-listed category. Imposing such a test will mean the judge will fail to consider properly whether the evidence is of a kind that may be unreliable before moving to consider under Jury Directions Act 2015 s 14 whether there are good reasons for not giving a warning (*Hudson v R* [2017] VSCA 122, [43]).
25. The need for caution before applying s 32 to types of evidence which is not listed in s 31 may be overcome where the circumstances in question are closely analogous to an accepted category of unreliable evidence (*R v Baartman* [2000] NSWCCA 298, [70]).
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 When must a s 32 unreliability warning be given?
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## Categories of evidence that are not of an "unreliable kind"
26. Courts have identified a number of categories of evidence that should not generally attract a s 32 unreliability warning:
- Evidence of a witness asserted to be biased (*DPP v DT (Ruling No 5) *[2024] VSC 348, [7]);
- Evidence of a witness asserted to have an interest in the result of proceedings;
- Evidence of a witness alleged to have a motive to lie (other than an accomplice–like motive to lie) (*R v Stewart *(2001) 52 NSWLR 301, [37], [99]);[^9]
- Evidence of a conversation that occurred a substantial period before it was reported (*R v Fowler* (2003) 151 A Crim R 166);
- Evidence that the witness was affected by drugs at the time of the events in question (*Young & Ors v R* [2015] VSCA 265, [72]).
27. While these matters should generally not attract a s 32 unreliability warning, they should usually be addressed by way of comments in the judge’s summing up (*R v Stewart* (2001) 52 NSWLR 301, [37], [99]).[^10]
28. At least in the case of children, the fact that evidence is unsworn is not a basis for finding that the evidence may be unreliable. The *Evidence Act **2008* and the *Jury Directions Act 2015* do not treat unsworn evidence as a kind that may be unreliable. There was also no requirement or rule of practice under the common law that judges warn the jury to take into account the differences between sworn and unsworn evidence when assessing reliability (*R v GW* (2016) 258 CLR 108, [55]–[57]).
29. An attack on a witness’s honesty does not by itself bring the witness’s evidence within s 32 (*R v Fowler* (2003) 151 A Crim R 166).
## Good reasons for not warning the jury
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[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 When must a s 32 unreliability warning be given?
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30. The judge need not give a requested direction "if there are good reasons for not doing so" (*Jury Directions Act 2015 *s 14). For information on the matters a judge must consider when determining whether there are good reasons for not giving a requested direction, see 3.1 Directions Under Jury Directions Act 2015.
31. Section 14 sets up an exception to the general rule that the judge must give requested directions. It is erroneous to invert the rule and require good reasons before giving a s 32 direction (*Hudson v R* [2017] VSCA 122, [43]).
32. The interaction between ss 14 and 32 creates a two-stage process. If the judge determines that the evidence is not “of a kind that may be unreliable”, then the judge does not go to the second stage of deciding whether there are good reasons for not giving the warning (*Wade v The Queen *[2019] VSCA 168, [28]; *Bednar v The King *[2024] VSCA 180, [144]).
33. Some circumstances[^11] in which it has been held that there may be good reasons for not giving an unreliability warning include:
|
[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 When must a s 32 unreliability warning be given?
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- Where, in the context of the trial and counsel's addresses, the effect of the relevant circumstance on the witness’s reliability would have been obvious to the jury (*R v Stewart *(2001) 52 NSWLR 301 (Howie J in dissent, [151]); *Bromley v R* (1986) 161 CLR 315; *R v Reardon & Ors* [2002] NSWCCA 203; *Elmaghraby** v R* [2016] VSCA 326, [23]–[25]; *Farshchi** v The King *[2024] VSCA 235, [62]; *DPP v DT (Ruling No 5) *[2024] VSC 348, [10]–[12]; *Movel** v The King *(2024) 75 VR 62, [166]–[167], [175]);
- Where the issues of reliability are well ventilated and the jury are adequately able to assess the risk for themselves, as a warning would “represent an unnecessary and unwarranted intrusion … into the deliberations of the jury” (*Movel** v The King *(2024) 75 VR 62, [167]).
- The factors which lead to the suggested unreliability are inherent to the witness being a child, and so an unreliable evidence warning would be inconsistent with *Jury Directions Act 2015 *ss 33 (prohibited statements and suggestions in relation to reliability of children’s evidence) and 44N (direction about language and cognitive skills of child witnesses) (*Movel** v The King *(2024) 75 VR 62, [173]–[174]);
- Where it was objectively unlikely that the sources of unreliability, if they existed, could have logically had any impact on the reliability of the evidence the witness gave (*Elmaghraby** v R *[2016] VSCA 326, [26]);
- Where the giving of the warning would cause unfair prejudice a co-accused’s case, such as where a co-accused’s evidence suffers from the same alleged deficiencies as the impugned witness (*Young & Ors v R* [2015] VSCA 265);
|
[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 When must a s 32 unreliability warning be given?
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- Where the judge instead gives tailored directions that were capable of alerting the jury to the reasons for the witness’s potential unreliability (*R v Covill* (2000) 114 A Crim R 111, [29];* R v Flood* [1999] NSWCCA 198, [16]);
- The potentially unreliable evidence was undisputed or unimportant (*R v Reardon & Ors* [2002] NSWCCA 203, [136]; *R v Fowler* (2003) 151 A Crim R 166);
- The "request" for a warning was made without enthusiasm and was not subsequently pressed (*R v Reardon & Ors *[2002] NSWCCA 203);
- The evidence fell within an accepted category of evidence of "a kind that may be unreliable", but in circumstances where no real issue of unreliability was raised (*R v Flood *[1999] NSWCCA 198;* R v Stewart* (2001) 52 NSWLR 301; *R v Fowler* (2003) 151 A Crim R 166).
|
[^2]: While evidence of a person’s previous representations is generally not admissible to prove a fact asserted by the representation (*Evidence Act 2008* s 59), there are a number of exceptions to this rule (*Evidence Act 2008* ss 65–74). See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
[^3]: An "admission" is a previous representation made by a party to a proceeding (including the defendant in a criminal proceeding) that is adverse to the person’s interest in the outcome of the proceeding (*Evidence Act 2008*, Dictionary "admission"). While admissions will often be inadmissible due to the hearsay and opinion rules, there are a number of exceptions listed in *Evidence Act 2008* ss 81–83. See 4.5 Confessions and Admissions for further information.
[^4]: This category includes people of old age, people with psychiatric or similar conditions, and people who were affected by alcohol or drugs at the time of the relevant incident. It does not, however, include people of bad character (*R v Chan *[2002] NSWCCA 217).
[^5]: This class of witnesses includes most witnesses previously covered by the rule of practice that required corroboration warnings in respect of "accomplices", as well as including witnesses with accomplice–like interests. While unclear, it may extend further (e.g. to include accessories after the fact) (*R v Stewart* (2001) 52 NSWLR 301; *Kanaan v R* [2006] NSWCCA 109). See 4.22 Criminally Concerned Witness Warnings for further information.
[^6]: A "prison informer" is a prisoner who gives evidence of an oral confession made to him or her by another prisoner. "Prison informers" differ from "prisoner witnesses" who are witnesses to events that occur in prison. A "prisoner witness" should not be treated as a "prison informer" (*R v Ton* (2002) 132 A Crim R 340 (NSWCCA), *R v Ali (No.2)* (2005) 13 VR 257). See 4.23 Prison Informer Warnings for further information.
[^7]: While evidence of a confession or admission made by a criminal suspect to an investigating official is inadmissible unless mandatory audio recording requirements are met (*Crimes Act 1958* s 464H(1)), in exceptional circumstances a court may admit evidence of a confession or admission to an investigating official that does not meet these recording requirements (*Crimes Act 1958* s 464H(2)). *Jury Directions Act 2015 *s 31(e) applies to evidence adduced in these exceptional circumstances, which is "oral evidence of questioning by an investigating official (within the meaning of the *Evidence Act 2008*) of an accused where the questioning has not been acknowledged by the accused".
[^8]: Subject to limitations on the application of the section to the evidence of children (*Jury Directions Act 2015* s 33).
[^9]: *R v Stewart* also identified the making of a prior inconsistent statement, or internal inconsistencies as factors that do not generally attract an unreliability warning. In *Hudson v R* [2017] VSCA 122, [58], the complainant’s prior inconsistent statement was treated as a significant matter that contributed to requiring an unreliability warning.
[^10]: In each of these examples, a judicial warning may be unnecessary because the factor tending to show unreliability and the consequences of accepting that factor would commonly be within the understanding of the jury. It may be these are example of the "good reason for not warning" exception.
[^11]: For other potentially "good reasons" for not giving an unreliable evidence warning, see S Odgers, *Uniform Evidence Law* (12th Ed, 2016) [EA.165.240].
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4.21 Unreliable Evidence Warning.docx
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