Coincidence evidence refers to evidence of two or more events that is relied upon to show that a person engaged in particular conduct or had a particular state of mind, based on the similarities between those events.

Its admissibility is governed by the Evidence Act 1995 (NSW), primarily sections 98 and 101. As a general rule, this type of evidence cannot be used unless the court finds the evidence has significant probative value that outweighs risks of unfair prejudice.

Coincidence evidence involves similarities between multiple events to prove that a person did a particular act or had a particular state of mind.

General rule:

Under section 98(1), evidence of two or more similar events is usually inadmissible to prove a person’s conduct or state of mind.

Exception:

It may be admitted if the similarities are such that the court thinks the evidence has signficiant probative value.

Balancing test:

The court must weigh the evidence’s probative value against the potential for unfair prejudice.

This evidence may be relied on in matters where the prosecution seeks to link several incidents to the defendant.

The court must be satisfied that the evidence has significant probative value that outweighs the danger of unfair prejudice to the defendant. Courts may exclude the evidence if its admission would lead to unfair prejudice.

When the prosecution seeks to rely on coincidence evidence, it must demonstrate that its probative value outweighs the prejudicial effect. The party seeking to adduce the evidence must give reasonable notice in writing to each other party of the party’s intention to adduce the evidence.

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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