Tendency as tendentious evidence

Andrew L. Urban

Our reader Peter writes in a Letter to the Editor: “In Australia there has been a call for the establishment of a judicial review board. There are perhaps hundreds of convictions of people [convicted] with a complete lack of evidence. 

“To succeed in prosecutions there has been an avalanche of the use of tendency and coincidence evidence, sometimes known as similar fact, unproven and uncharged evidence. This is sometimes known as hearsay. Due to this problem, the UK established an evidence review board which has overturned over 500 convictions.

“The appeals opportunities in the normal courts had expired. This is due to the fact that no matter what, the system wanted finality above all else. The concept of running out of appeal opportunity has been removed in the UK but not Australia.

“Can you see the problem here and how easy it is to convict when the complainant can use hearsay, but incredibly, the accused cannot. Like to help gentlemen? I’m one such injustice.”

In an egregious example of the use of tendency evidence, the complainant’s evidence was supported by a friend’s tendency evidence. But the friend’s evidence was untrue.

As Peter says, the accused may not bring the equivalent of tendency (eg prior sexual conduct) evidence against the complainant; while the complainant is permitted to rely on tendency evidence.

The tendency of Australian courts to admit tendency as evidence is most pronounced in sexual assault cases of all types.

As I argue in my book Frank Valentine Guilty by Say-So, in the case of the late Frank Valentine, accused of historical sexual abuse 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 should not be relied upon as tendency evidence to support another inherently implausible and uncorroborated claim. Similarly, the trial of Noel Greenaway (for historical sexual abuse at the same child welfare department institution) was stuffed with uncorroborated tendency evidence; in reality, just decades old say-so; and the judge told the jury that was all the evidence on which to base their verdict.

You can see why Peter is so concerned. As one lawyer put it during our research, where the prosecution uses tendency rules to seek a conviction, it is because the Crown case is so weak.