Tendency Evidence

Under s 97 the Evidence Act 1995 (NSW), tendency evidence is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. It includes evidence of the character, reputation or conduct of a person.

It is admissible if it has significant probative value under s 97(1)(b) with further restrictions on tendency evidence adduced by the prosecution under s 101.

DPP v Roder [2024] HCA 15

Background

The case involved 27 sexual offences against two children.

The prosecution intended to use evidence of the charged acts to demonstrate Roder’s tendency to have an improper sexual interest in children and to act on it.

DPP v Roder and Tendency Evidence

In Director of Public Prosecutions v Benjamin Roder (a pseudonym) HCA 15, the High Court of Australia unanimously ruled that charged acts do not need to be proven beyond a reasonable doubt before they can be used to establish a defendant’s tendency for certain behaviour.

The decision clarified that the standard of proof for the charged act and the standard for using the charged act as evidence of tendency were separate matters.

The primary question was whether the jury must find that the specific charged acts which formed the basis of the tendency, were proven beyond reasonable doubt before they could be used to establish the defendant’s alleged tendency. The High Court considered whether this requirement was prohibited by s 61 of the Jury Directions Act 2015 (VIC).

The High Court’s Decision

The High Court unanimously ruled that it is not necessary for the charged acts to be proved beyond reasonable doubt for them to be used to establish a tendency.

The Court found that requiring this higher standard would lead to the prosecution proving the charge itself before using evidence to prove the alleged tendency.

The High Court determined that a trial judge should not have directed the jury that they must be satisfied of the charged acts beyond a reasonable doubt to use them as tendency evidence. The Court reasoned that it would contradict the purpose of tendency evidence and was contrary to the Jury Directions Act 2015 (VIC).

The trial judge’s ruling and the Court of Appeal’s upholding of it were overturned because they imposed this requirement, which the High Court held was contrary to the nature of tendency evidence and s 61 of the Jury Directions Act 2015 (VIC).

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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