Tendency evidence risks unfair trials, eg Frank Valentine

Andrew L. Urban

Arguably the most insidious area of the criminal law in Australia is the application of Tendency & Coincidence evidence, a constant threat to fair trial protections. 

In the case of the late Frank Valentine, the appeals court seems to have made a virtue of the errors at trial when it took the view that “in assessing the reasonableness of verdicts, the Court is entitled to consider the cumulative effect of all the evidence, including tendency evidence, to support a conclusion beyond reasonable doubt. The Court must be entitled to give as much weight to the admitted evidence as it considers appropriate, and it is open to the Court to accept tendency evidence on the basis that it rebuts the natural propensity to dismiss complaints as inherently implausible.”

Well, no. In this case, one inherently implausible and uncorroborated claim cannot be relied upon as tendency evidence to support another inherently implausible and uncorroborated claim. (In one egregious example of the use of tendency evidence, not in this case, the complainant’s evidence was supported by a friend. But the friend’s evidence was untrue.)

Valentine was 78 when he was tried in 2019 for a number of sexual assault charges from his 30s, brought by six claimants who were, some five decades earlier, juvenile delinquents held in child welfare institutions. (The Parramatta Training School for Girls.)

“Establishing propensity for criminality” is the basis of the tendency provisions which are often used in Australian courts, especially in sexual abuse cases. One senior counsel says: “Tendency and coincidence is a way to convict someone in a case that does not stand the test of beyond reasonable doubt. It puts aside the relevance of all evidence.”

At the Valentine trial, for example, the trial judge accepted the evidence of two women who were not at PTSG at the relevant time.

By contrast, New York appeal judges cited errors in the way the trial of Harvey Weinstein had been conducted, including admitting the testimony of women who were not part of the charges against him. They ordered a retrial.

Overview of Tendency and Coincidence Provisions in NSW

In New South Wales, tendency evidence (under s 97 of the Evidence Act 1995) is used to show that a person has a tendency to act in a particular way or have a particular state of mind, based on prior conduct. Coincidence evidence (under s 98) aims to demonstrate that two or more events are unlikely to have occurred coincidentally without a connection, often relying on similarities. While these provisions can strengthen prosecutions, especially in cases of sexual assaults, they are governed by safeguards such as s 101 (probative value must substantially outweigh prejudicial risk) and s 137 (exclusion if unfair prejudice outweighs probative value). However, their use poses significant risks to the accused’s right to a fair trial, as outlined below based on judicial analyses, legal commentary, and case law.

Key risks to a fair trial

Admitting this evidence can lead to jury/judge bias by revealing the accused’s bad character or past misconduct, prompting judgments based on propensity rather than the specific charges. For instance, juries/judges may overestimate the evidence’s relevance, provoke emotional reactions, or distract from the core issues, requiring the accused to defend against uncharged acts spanning years. This risk is heightened in NSW since 2020 amendments lowered admissibility thresholds for child sexual offenses, potentially exposing juries to prejudicial details without sufficient probative weight. Under the Uniform Evidence Laws (UEL), the broader admissibility compared to common law increases the danger of wrongful convictions by allowing evidence without “striking similarities”. Or, as in the Valentine case, a kind of circular confirmation by witnesses in the same circumstances, one supporting the other. A kind of MeToo on steroids.

In jury trials, juries may struggle with complex reasoning, such as distinguishing permissible uses (e.g., proving intent) from impermissible ones (e.g., inferring guilt from character). They might underestimate how common the alleged tendency is in the general population or fail to apply it only to the occasion in question. Overlap between tendency and coincidence evidence can further confuse jurors, leading to impermissible applications despite instructions. Legal experts note that non-lawyer jurors often find it difficult to navigate “grey areas” in lengthy judicial summations, risking biased decisions

When evidence is cross-admissible across multiple counts, as in Valentine (judge alone) and also Noel Greenaway (jury), joint trials may proceed, but this can overwhelm juries and prejudice the accused by blurring individual charges. Even with directions against tendency reasoning in single-complainant cases, there’s a risk of impermissible use, potentially necessitating separate trials to ensure fairness. This is particularly problematic in sexual assault cases like the ones mentioned, where tendency evidence aims to bolster credibility but may well create undue bias.

Determining “significant probative value” is subjective, leading to inconsistent rulings. Evidence from a sole complainant often lacks sufficient weight yet risks unfairly enhancing credibility. For coincidence evidence, overemphasizing similarities without accounting for dissimilarities or independence of accounts can inflate value while heightening prejudice. Broader reforms under the UEL have made it easier to admit such evidence, amplifying these risks compared to stricter common law standards.

These risks highlight the controversial nature of tendency and coincidence evidence, one of the most complicated areas of evidence law in NSW criminal cases. While intended to aid prosecutions in pattern-based crimes, inadequate safeguards can lead to miscarriages of justice, prompting calls for further review to balance probative benefits against fair trial protections.

Another reform in waiting …