4.16 -Tendency, Coincidence, Relationship and Context[1]

4.16.4 - Charge: Tendency Evidence (Multiple sexual complainants)

When to Use This Charge
This charge may be givenif evidence of the accused’s sexual acts with multiple complainants has been led as tendency evidence. See Bench Notes: Directions Under Jury Directions Act 2013for information on when directions are required.
A short direction based on this charge should be given at the time the evidence is led.
Alternative Charges
If evidence has been led of sexual acts involving a single complainant, use Charge: Tendency Evidence (Sexual Interest Evidence).
If evidence has been admitted to prove that the accused had a tendency to act in a particular manner or with a particular state of mind, and that evidence does not demonstrate that the accused had an improper sexual interest in the complainant, use Charge: Tendency Evidence (General Charge).
If evidence that demonstrates the nature of a relevant relationship may be used as circumstantial evidence of the accused’s guilt, use Charge: Relationship Evidence.
If evidence has been admitted solely to assist the jury to understand the context of the offence, use Charge: Context Evidence.

Permissible Uses

Members of the jury, part of the prosecution case is that NOA has demonstrated a pattern of behaviour that involves [describe relevant tendency, e.g engaging in sexual acts with co-workers while at work / engaging in [describe relevant sexual act] with children who sleep at his house].[2]

[Judges must:

  • Identify the conduct said to establish the tendency. This will often involve referring to both the tendency notice filed by the prosecution and the evidence that ultimately emerged. This process will be informed by discussions between the judge and the prosecution before closing addresses.
  • Describe the circumstances in which each the events said to establish the tendency took place.
  • Identify the distinctive features, similarities and dissimilarities between the different events which provide the evidence with its probative value. Similarities may lie in either the nature of the previous acts or events, or in the circumstances of those acts or events.]

The prosecution argues that [summarise prosecution arguments on the use of tendency evidence]. In response, the defence says [summarise defence arguments on the use of tendency evidence].

If you are satisfied beyond reasonable doubt that one or more of these events took place, you must then consider the similarities and differences between NOA’s actions on other occasions and the circumstances of the charge you are considering. Do the similarities show that NOA has engaged in a pattern of behaviour which makes it more likely that s/he committed the acts alleged for the charge you are considering?[3]

[If necessary, add any other permissible use directions here]

It is important that you only use this evidence for this purposes, and only if you are satisfied beyond reasonable doubt that it is true and helps to explain [identify relevant facts-in-issue]. If you are not satisfied of the evidence beyond reasonable doubt, or do not think that the acts are sufficiently similar to make it any more likely that NOA committed the alleged acts, then you must disregard it.

Impermissible Uses

I will now direct you on how you must not use this evidence.

You must not use the evidence to reason that, if NOA did [describe other acts], s/he must have committed the offences charged. This evidence, and the sexual interest the prosecution says that it reveals, is only part of the evidence. Other bad behaviour in the past cannot alone prove guilt.

Similarly, you must not substitute the evidence of [describe other acts] for the evidence of the offences charged. You can only convict the accused of the offences charged if you are satisfied beyond reasonable doubt of those offences. It would be wrong to say “I am satisfied that NOA [describe an uncharged act] and so I will convict him/her of [describe charged act], since that is the same kind of conduct”.[4] Proof of these acts is not the same as proof of the offences charged, but this evidence may help you decide whether the prosecution has proven the offences charged.

Finally, you must not allow the evidence of [describe other acts] to cause you to close your mind against the accused or pay less attention to the other evidence. Evidence of [describe other acts] is only part of the evidence the prosecution relies upon and when making your decision, you must consider all the evidence.

Ultimately the questions for you in dealing with this evidence are: does it establish the alleged sexual interest and does this then make it more likely that the accused committed the offence(s) charged?

1

[1] This document was last updated on 1 August 2014.

[2] This statement should be adapted based on the specific tendency alleged, including any circumstances which are said to form part of the circumstances in which the accused acts on the alleged tendency.

[3] In some cases, it will be necessary to identify intermediate steps through which the tendency evidence makes NOA’s guilt more likely, such as by enhancing the credibility of the complainant. In addition, if the tendency reasoning only applies to a subset of charges, the judge must spell out those limitations here.

[4] If it is necessary to warn the jury against substitution where the relevant acts are different, this explanation should be modified.