Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?

Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?

Australia has five tests for the admission of similar fact or propensity evidence as it is known at common law, or alternatively coincidence or tendency evidence as it is known under the uniform evidence legislation. Each test differs according to the difficulty or ‘bar’ the Crown faces in obtaining the court’s permission to adduce such potentially damaging evidence. Queensland has the most stringent ‘bar’ in the form of the Pfennig test at common law as set down by the High Court of Australia (excluding evidence of domestic violence). This is followed by South Australia with its permissible use test under s 34P of the Evidence Act 1929 (SA). Next are the tendency and coincidence rules set out in ss 97, 98 and 101 of the uniform evidence legislation. Then comes Western Australia in the form of its public interest test under s 31A of the Evidence Act 1906 (WA). The Royal Commission into Institutional Responses to Child Sexual Abuse proposed an even lower threshold for the admission of similar fact or tendency evidence (but only for child sexual offence proceedings) of being relevant to an important evidential issue in the proceeding. Finally, with the lowest bar for admission purposes, New South Wales has enacted a variation of the Royal Commission’s threshold through the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), which introduced a new s 97A Admissibility of tendency evidence in proceedings involving child sexual offences and amended s 101(2). This legislation follows a communique issued on 29th November 2019 by the Council of Attorneys-General entitled ‘Model Bill to Amend Uniform Evidence Law Test for Admissibility of Tendency and Coincidence Evidence in Criminal Trials’. Accordingly, other jurisdictions within the uniform evidence regime are expected to follow New South Wales’s lead. This article will weigh the merits of each of the five tests in an endeavour to establish whether there is any prospect of a model provision, such that a uniform test across Australian criminal law jurisdictions for the admission of similar fact or tendency evidence could be adopted, aside from child sexual offences and domestic violence offences. It is acknowledged that where to set the bar of admission is both a moral and political one, weighing the moral harm of wrongful conviction against the public interest in convicting offenders (leaving aside local factors such as whether jury trials are mandatory or whether joint trials are common). The criteria for determining the test for a model provision will be considered in Part III, which if adopted will require a shift in the weight ascribed to these competing considerations in some jurisdictions.

c. Thomson Reuters.