The tendency rule, set out in Section 97 of the Evidence Act 1995 (NSW), generally restricts the use of a person’s prior behaviour or character traits to suggest they are likely to act in a particular way.

This type of material, called tendency evidence, cannot be admitted unless the party seeking to rely on it provides written notice in advance and the court is satisfied that it has significant probative value.

Tendency evidence involves information about someone’s past actions, character, or reputation that is used to suggest they behaved similarly on the occasion in question.

Section 101 is required where the admission of tendency evidence relates to criminal proceedings. Section 101 provides that tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

Requirements for Admissibility

Notice: The party wishing to rely on tendency evidence must provide reasonable written notice to the other parties.

Significant probative value: The court must consider that the evidence, alone or in combination with other evidence, has significant probative value.

Balancing prejudice: Where the prosecution seeks to adduce the evidence, its probative value must significantly outweigh any prejudicial effect on the defendant.

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.

Post Created by Jesslyn Duong, paralegal.

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