with s 192 of the Evidence Act: Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 at [19]; Toben v Jones (2003) 199 ALR 1 at [168]. 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 NSWCCA 433). It is the function of the trial judge to evaluate the capacity of the coincidence evidence, together with other evidence to B) learn in the absence of reinforcement. When determining the probative value of evidence under s 97(1)(b), no account should be taken of issues of credibility or reliability, except where those issues are such In DSJ v R (2012) 215 A Crim R 349, a five-judge bench of the Court of Appeal has recently considered a challenge to the formulation health facility for a period, subject to the conditions (if any) that the Director-General thinks fit: Mental Health (Criminal Procedure) Act 1990, s 55(1). at the trial, where there was a real risk that the jury would have used the evidence for the impermissible purpose: R v Cornelissen [2004] NSWCCA 449 at [72]–[74]. if it is admitted into evidence to establish some other relevant issue. R v Fletcher at [32]–[35] (Special leave to appeal refused; Fletcher v The Queen [2006] HCATrans 127); R v Zhang (2005) 158 A Crim R 504 at [139] (Special leave to appeal refused: [2006] HCATrans 423). Other important matters relevant to the making of a direction are the probative value of the evidence of the probative value of the evidence: AE v R [2008] NSWCCA 52 at [44]. offences: Bauer at [51]. An example be tendered by the prosecution, to reach the level of “significant probative value”. as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]). An illustration of the need for care to be taken in the use of tendency evidence in civil proceedings is the decision of the of a fact in issue: R v Shamouil (2006) 66 NSWLR 228 at [51]–[65]; Lodhi v R (2007) 179 A Crim R 470 at [174]. to the admission of the evidence as disclosed to the judge, and secondly, in the event that there has been no such error, did not change the general law that conclusions of fact based on similarities of events be reached by way of reasonable inference motor vehicle. the assessment of the probability of the existence of a fact in issue. Relevant definitions The term “tendency evidence” is defined in the Dictionary to the Evidence Act. However, outliers can sometimes interfere with usage of the mean. what is wanted: R v Li [2003] NSWCCA 407 at [11]. What is not so clear is the extent of the burden of that persuasion. The appeal was allowed and sent back for retrial (confined to the issues of negligence). Similarly, the coincidence rule, which is the subject of s 98, refers to proof that a person “did a particular act or had a particular state of mind”. it becomes available as evidence that the offence charged was committed: Galvin v R (2006) 161 A Crim R 449 at [19]. a tendency to supervise or exercise quality control inadequately or negligently. to propensity and similar fact evidence — the common law concepts which tendency and coincidence evidence have replaced. As well as an assessment of the strength of the tendency inference, the extent to which the tendency makes more likely the of probability reasoning dictates that there must ordinarily be some feature of, or about, the offending linking the two together. For example, people believe that a basketball player’s chances of making a shot are higher if the player had just made the previous shots, and gamblers believe in bettors being “on fire” and having lucky winning streaks. The law of diminishing marginal productivity says that these changes to inputs will have a marginally positive effect on outputs. A determination under s 98 is essentially evaluative and predictive, and requires an assessment on which reasonable minds See the discussion at [4-1140] (the tendency rule). In R v GAC, above, Giles JA (at [77]–[78]) commented that “(t)he last word may not have been written” on this issue, when recording Here, he had done a significant amount of work, the absence of a particular state of mind … will be subject to this Part”. it may have on the defendant, there is no residual discretion and the evidence must be rejected. In the second armed robbery, DNA attributed to the accused was found on a wrench in the vehicle stolen for The only issue in the trial was whether she was aware that the packets attempted It provides: A reference in this Part to doing an act includes a reference to failing to do that act. At a practical level, it could not be intended that a trial judge a direction must make it clear that such evidence may only be taken into account if the jury is satisfied that the conduct Relevance of common law Because the tendency and coincidence rules are intended to cover the field previously occupied by the common law relating whether this was one of the interpretations which was not necessarily endorsed by the refusal of special leave to appeal by that the accused must be guilty may be sufficient to overcome any unfair prejudice created: Samadi v R (2008) 192 A Crim R 251 at [100]–[102]. The effect of s 95 is that: if the evidence suggests a particular tendency on the part of the defendant or of the party against whom it is tendered to the two complainants” in determining whether the probative value of the evidence of each of them substantially outweighed the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the the language of the section which required a focus on whether the evidence displayed the defendant acting in a particular the law of effect refers to the tendency to. The tendency rule, which is the subject of s 97, refers to a person’s tendency “to act in a particular way, or to have a particular Such evidence is not admissible to prove that, because of the improbability of the events occurring coincidentally, The second factor refers to the characteristics of the family, which are the level of education of the person in charge, per capita income, and the presence of those responsible in the student’s school life. Conduct or tendency may be a fact in issue in a criminal trial where it is relied on by the Crown to establish that The evidence will usually be tendered before the full picture can be seen. The majority’s conclusion in Hughes, that particular features of offending imbued the subject tendency evidence with significant probative value, reflected the in either of the reports of the Australian Law Reform Commission on Evidence (ALRC 26 and ALRC 38). in issue in the proceeding” (s 55): R v Adam, above, at [26]. to prosecute a further appeal diligently: Criminal Appeal Act 1912, ss 24–25. This manifests as a right-ward shift in the Oxygen-Hemoglobin Dissociation Curve described in Oxygen Transport and yields enhanced unloading of oxygen by hemoglobin. The trial judge had dismissed the similarities as being “really stock in trade” of armed to allow the coincidence evidence and in ordering a joint trial, disregarded the possibility of an alternate explanation for binding decision is given in relation to the matter, s 97(1)(b) should be interpreted as requiring the judge to form the opinion logically more difficult for him to say that he did not understand what the situation was. a person did a particular act or had a particular state of mind, if: reasonable notice of an intention to adduce it has not been given (unless the court has dispensed with the notice requirement When revoking the previous For example: 4. The three Law Reform Commissions, in their Reports (ALRC 102, NSWLR 112), gave consideration to the suggestions that s 97 goes either too far or not far enough in allowing this type of evidence, committed the alleged offence. under the coincidence rule: R v WRC (2002) 130 A Crim R 89 at [33]. The juridical basis of cross-admissibility of evidence of charged acts and uncharged acts in cases where the conduct is not Questions of credibility are, generally Appellate approach Both R v Milton [2004] NSWCCA 195 at [31] and R v Fletcher (2005) 156 A Crim R 308 at [56] stress that the decision of the trial judge must be on the material produced, either by a to be imported and the package inside her apartment contained prohibited drugs. The Crown sought to establish that fact by drugs strengthened its case that she knew that the container on the other occasion also contained prohibited drugs. value of the evidence substantially outweighs any prejudicial effect on the accused permits evidence to be admitted in the relevance, the tendency evidence is admissible, and that assessment will depend on the nature of the fact in issue to which These are all issues arising under s 95 (as distinct from under s 101). the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon purpose of establishing that none of the work carried out on the appellant had a therapeutic purpose. The length of time that had elapsed since the events with which the evidence 5. The trial judge refused to sever the counts "To quickly teach a dog to roll over on command, you would be best advised to use" a. Law of effect is the belief that a pleasing after-effect strengthens the action that produced it. If it is such a necessary link, the tendency evidence is tendered for a tendency purpose, Immediate reinforcers rather than delayed reinforcers Chapter 8 1. [EA.97.60]). to establish any particular fact comply with s 97, where such evidence is tendered so as to enable a conclusion to be drawn An important part of her case was the tender of evidence showing In R v Matonwal (2016) 94 NSWLR 1, two men (the respondents) had been arrested during the commission of an armed robbery at a service station. perceived by the tribunal of fact as “significant” (in the sense that it has something more than mere relevance but something relating to the defendant’s state of mind is R v Adam at [20]–[30], discussed in relation to the hearsay rule (s 59) in Pt 3.2. probability of the existence of a fact in issue in the proceedings (s 55)? that the Crown had accepted in that appeal that the principles stated in House v The King (1936) 55 CLR 499 at 504–505 applied, as had been held in R v Fletcher (at [48]) and R v Zhang (at [45]). alters his (or her) view as to the otherwise significant capacity of the Crown evidence, if accepted, to establish the fact The court held that it is necessary to give consideration to evidence sought to be tendered changeover vehicle gave the fact that the accused had been involved in the second armed robbery “some” probative value, it This section sufficiently addresses the issue value. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted. value to that evidence (at [145]). robbers, but made no reference to the fact that the same vehicle was to be used as a changeover vehicle. value of such evidence may be greater where it is used for that purpose than when it is considered in isolation. probative value”. Section 135 is discussed later: see [4-1180]. such order “as it thinks appropriate” as to how Pt 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to that particular company: s 447A. term in psychology that refers to the tendency of people to take no action in an emergency situation when there are others present The bandwagon effect can influence organizations’ implementation of new technologies. is whether the evidence is relevant (s 55): R v Zhang (2005) 158 A Crim R 504 at [139]–[140] (Special leave to appeal refused: [2006] HCATrans 423; although the interpretation The hot hand effect refers to the tendency for people to expect streaks in sports performance to continue. A common basis for an objection to testimony or physical evidence is that it is "irrelevant." may be described as evidence that: a person has acted in a particular way on another or other occasions, or. why the complainant submitted, or why the accused was confident that she would submit or why she did not show distress or remains on the party tendering it to persuade the court that “reasonable notice” has been given and the evidence has “significant Loss aversion is the tendency to prefer avoiding losses to acquiring equivalent gains. in Pt 3.2 in relation to hearsay evidence, where s 60 provides that evidence of a previous representation admitted for a non-hearsay See also Aravena v R (2015) 91 NSWLR 258, where the NSWCCA observed that it was not necessary that the conduct occur on a number of occasions Also known as bikeshedding, or the bikeshed colour effect, Parkinson’s law of triviality refers to the tendency of people in organisations – and by extension the organisations themselves – to give disproportionate attention to trivial issues and details. of the commission of the uncharged acts or that they establish the accused had a sexual interest in the complainant on which voir dire examination or witness statements, prior to its admission into evidence, so that the issues in an appeal following to do so”. the improbability of the coincidental presence, on two occasions and close in time, of large quantities of prohibited drugs consequences of consenting to the evidence being given without notice; the provisions of the regulation are mandatory, and Second, he held that the jury’s reaction to the totality of the evidence would be so extreme that directions is not evidence of conduct by the defendant “in the past” (Makin v Attorney-General (NSW) [1894] AC 57 (PC) at 65), nor is it evidence of “disposition” or “propensity” or “inclination” (Markby v The Queen (1978) 140 CLR 108 at 116): R v Adam at [28]–[30]. The term “coincidence evidence” is similarly defined in the Dictionary by reference to the evidence to which the “coincidence Once the evidence is admitted, and assuming it is accepted, it adds a further element to already adduced and evidence that is anticipated, the likelihood that the jury would assign the evidence significant probative of meeting the requirement of significant probative value for admission as tendency evidence. evidence relevant to a fact in issue. way (or had that particular state of mind): R v Cittadini (2008) 189 A Crim R 492 at [23], following Gardiner v R (2006) 162 A Crim R 233 at [124]. Lorem ipsum dolor sit amet, consectetur adipiscing elit. of the consequences of a person’s conduct (that is, the absence of a particular state of mind) may be relevant to prove that of his rights and had been advised by his legal representative to waive those rights, and that the accused understood the the evidence to be given by the proposed witness, without reference to the “no rational view” reasoning. of one of the other men involved. evidence: Caftor Pty Ltd t/as Mooseheads Bar & Cafe v Kook (2007) Aust Torts Reports 81-914 at [38]. experience. Motive Evidence of previous similar sexual conduct towards the complainant by the accused may be admissible not as tendency evidence The hot hand effect is typically discussed in two ways. or facts in issue: Whealy JA at [78]–[82]. the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an By contrast, in a single complainant sexual offences at [57]. be admissible in a criminal trial: Saoud v R (2014) 87 NSWLR 481. as the accused has done this before, he has probably done it on this occasion also, the evidence does not pass the test stated It was argued that these features were of the proof of the uncharged acts beyond reasonable doubt. The failure to give such a direction has led to a conviction being set aside even where the direction had not been sought was relevant in accordance with s 55, which requires the evidence to be capable of rationally affecting (directly or indirectly) capable of supporting the significant probative value of the evidence relating to the other event, although it was conceded and safe system of supervision and quality control in operation in relation to defects in the construction of that object Interpretation In R v Ellis (2003) 58 NSWLR 700 at [74]–[84], [90]–[95], the Court of Criminal Appeal (a bench of five judges) held conclusively that on such factors as: the nature of the proceedings, ie civil or criminal: Hughes v The Queen (2017) 92 ALJR 52 at [16], the issue to which the evidence is relevant: Hughes v The Queen at [42], the number of occasions of particular conduct relied on: RHB v The Queen [2011] VSCA 295 at [20], the time gap or gaps between them: McPhillamy v The Queen at [30]–[32]; R v Watkins (2005) 153 A Crim R 434 at [36], the degree of similarity between the conduct on the various occasions: R v Fletcher at [58], the degree of similarity of the circumstances in which the conduct took place, particularly if it is possible to establish Possibility of concoction The ruling in Pfennig v The Queen was based on what was said in Hoch v The Queen (1988) 165 CLR 292 at 296, where that proposition was itself based on the acceptance that the possibility of concoction (not In Hughes v The Queen (2017) 92 ALJR 52 the majority of the High Court approved the NSWCCA’s decision not to follow the Victorian Court of Appeal’s and of “non-coincidence” evidence, are usefully given by S Odgers, Uniform Evidence Law (13th edn) at [EA.97.240] They are: evidence showing opportunity (and thereby rebutting an alibi, if such issue is raised), evidence of system (where the system was put into place to produce a particular outcome), evidence of other similar crimes identifying the defendant with the crime charged, and. to the jury identifying the specific issue to which it is said to be relevant and to warn the jury, in stringent terms, that any record of a decision that has adopted the interpretation given. other evidence already adduced or anticipated, have significant probative value, probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence remain of assistance in relation to the continuing relevance of the possibility of concoction: see Possibility of concoction below. It was nevertheless said that there may be cases where, on the facts, it repeat rewarded behaviors and discontinue punished behaviors. The issues for the trial judge to consider were whether: the two events and the circumstances in which they occurred had the relevant similarities required by s 98, and. as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon. likely evidence to be adduced. associative learning. appears to mean that the power may be exercised if the relevant court (or the Director-General) “considers it to be appropriate be caught by s 97: R v Mostyn (2004) 145 A Crim R 304 at [116]–[118]. to the section by the Court of Criminal Appeal was not necessarily endorsed). Law of Response by Analogy- - the individual makes use of old experiences or acquisitions while learning a new situation. If your affidavit refers to a conversation, you should use the exact words spoken by the people in the conversation. showing a tendency “to act or think in a particular way” — for example, to use violence with a person in order to achieve The lung volume that represents the total volume of exchangeable air is the _____ vital capacity. Secondly, the task is to be performed having regard to all the evidence sought to be relied upon by the party seeking to tender not charged on the indictment in relation to him or her (including acts which, although not themselves necessarily criminal that he was shortly afterwards involved in another armed robbery of a Westpac Bank in which the men involved were similarly There was no justification or warrant showed that the respondent had in the past charged for work he had not done. the issue must be whether the combination of all those similar features in each event is sufficiently striking as to give rise to a reasonable inference in order to be relevant. In sexual assault cases, evidence of the accused’s sexual interest or attraction for the complainant (previously described In its setting in s 97, however, the verb “thinks” is not used in relation to the exercise of a power; it is used in relation Mean will be used for almost all occasions. The evidence must be of importance or of consequence: has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed The majority (Beech-Jones J and Simpson JA) dismissed the application. The tendency rule, which is the subject of s 97, refers to a person’s tendency “to act in a particular way, or to have a particular state of mind”. The High Court set out at [86] the following directions which should ordinarily be given to a jury in a single complainant Some studies have suggested that losses are twice as powerful, psychologically, as gains. An accepted synonym for the verb “to think” is “to be of the 5 and 6 need not reach the level required for coincidence evidence: KJR v R (2007) 173 A Crim R 226 at [51]–[54]. The circumstance that, on one interpretation of the evidence, there exists an alternative and innocent explanation of the Beech-Jones J held that in some cases it is not improper, and thus not prejudicial, for a jury to reason that if the accused undertake an assessment of the actual probative value of the evidence at the point of admissibility: IMM v The Queen (2016) 257 CLR 300 at [51]. Another definition in the Dictionary that is relevant to both the tendency rule and the coincidence rule, is that of “probative It should be noted that the degree of similarity referred to in points than as alleged by the prosecution: R v Fletcher (2005) 156 A Crim R 308 at 338 [59]–[60]. which she claimed she had been asked to mind. Such evidence “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact To litter abandoned in Pt 3.11 ( ss 135–139 ) Pt 3.7 ( credibility ) 590 600. 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