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Cite as: August 2015 89 (8) LIJ, p.42

The Supreme Court of Appeal decision in Velkoski reinforces that practitioners must  adopt a strict approach to the admission of tendency and coincidence evidence. 

By Harry Venice

Velkoski v The Queen (Velkoski)1 is the appeal of the unreported decision of DPP v Velkoski2 where the applicant was acquitted of one charge, but convicted of 15 charges, of attempting to commit an indecent act with a child under 16. The charges related to three complainants. The prosecution relied on tendency evidence for each of the charges and also sought that the tendency evidence be cross-admissible for each of the charges. The applicant received a sentence of four years and eight months’ imprisonment with a non-parole period of three years and sought leave to appeal against his conviction. The successful defence appeal of the trial decision was heard by the Victorian Supreme Court of Appeal (VSCA) before Redlich JA, Weinberg JA and Coghlan JA.

Relevant ground of appeal

The fourth ground of appeal was that there had been a substantial miscarriage of justice because tendency evidence was admitted into the trial.

The Court noted at [4]-[7] that at trial defence counsel had “by a deliberate and conscious decision . . . agreed that each of the complainant’s accounts could support tendency reasoning” and waived objections to its admission. However, the Court also observed that this did not relieve the trial judge of the duty to give adequate directions as to its use, and determined that the directions given as to the use of tendency evidence were deficient. The Court further noted at [184] that on nine charges there was nothing to support tendency reasoning. A retrial was ordered.

The Court then proceeded to address issues and uncertainties regarding tendency and coincidence evidence.

Tendency notice requirements

The tendency notice issued by the Crown in Velkoski identified both the evidence of the conduct in each of the charges which was said to show tendency, and also the facts from each of the charges which were in issue and to which that tendency evidence related. The notice was criticised by the Court at [21] for being too general and having a number of unsatisfactory features. In criticising the tendency notice, the Court referred to CGL v DPP3 where the VSCA gave an express criticism of the generality of such notices and noted that “the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind”.4

A further issue was that the notice combined the tendency evidence sought to be relied on with the conclusions to be drawn from that evidence. The tendency notice stated that the tendency of the applicant was to act in a particular way and with a particular state of mind, namely “that the accused had a sexual interest in young children attending the day-care centre run by his wife” and “that the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants”. In doing so, the prosecution went beyond the purpose and scope of the tendency notice by suggesting that the tendency was the accused’s willingness to act on his sexual interest and commit the sexual acts alleged by the complainants.

Their Honours noted at [22] that a tendency notice must be confined to the particular manner or circumstances in which the applicant has previously acted or his state of mind on occasions other than the subject of the charge. Their Honours also expressed that a notice should not assert and the jury must not be instructed that the tendency is that the accused had a sexual interest in the complainants and that he acted on his sexual interest by engaging in the sexual acts alleged by the complainants.

It is clear from Velkoski that great care and precision is required when drafting tendency or coincidence notices. Vague, pro forma notices will not establish significant probative value and will result in the alleged tendency being inadmissible. Parties seeking to have tendency or coincidence evidence deemed as inadmissible should systematically deconstruct a tendency notice to expose its lack of specificity. Having tendency evidence admitted can literally devastate an otherwise strong case, especially in jury trials.

Tendency and coincidence principles

Significant probative value: Significant probative value requires far more than mere relevance. The VSCA stated at [171] that for tendency or coincidence reasoning to be permitted, the features of the acts must reveal underlying unity, a pattern of conduct, a modus operandi or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely.5 This is particularly helpful for practitioners because the terminology and relevant principles in establishing significant probative value have now been expressly stated and narrowed by the VSCA.

Features supporting tendency reasoning: The Court also identified at [166] the following six features which further support tendency reasoning:

  • the number of occasions on which the particular conduct relied on is said to have occurred;
  • the time gap between those occasions;
  • the degree of similarity between the conduct on those occasions;
  • the degree of similarity of the circumstances in which that conduct took place;
  • whether the tendency evidence is disputed; and
  • the issue to which the evidence is relevant.6
  • The relationship between an offender and victims: The Court did not list the relationship between an offender and victims as a relevant feature in supporting tendency reasoning. Unless all the tendency evidence and charged acts relate to the same victim, it would be most unusual for the relationship between offender and victims itself to be sufficient to amount to tendency evidence. For an exception to arise, the nature of the relationship between offender and victims would have to be “entirely remarkable” and “out of the ordinary”.7 The Court further noted that in common situations such as parent and child, some other features of similarity must be present.

    The expressions “striking similarity” and “an affront to common sense”: The Court also addressed at [169] terminologies and tests which have been used in the past regarding tendency and coincidence evidence. For example, the Court expressed that “striking similarity” is not a condition of admissibility for tendency or coincidence evidence and that a trial judge should not ask whether it would be “an affront to common sense” to withhold evidence of that kind from the jury. Their Honours noted that the above two examples are common law expressions and are overly restrictive when applied to the tendency and coincidence provisions under the Evidence Act 2008 (Vic) (Evidence Act).

    Perceived differences in decisions of the VSCA dealing with tendency and coincidence evidence: The Court at [172] emphasised that decisions of the VSCA dealing with tendency and coincidence reasoning, particularly CGL v DPP,8 PNJ v DPP,9 Nam v The Queen,10 and Murdoch (a Pseudonym) v The Queen11 must be clearly understood. The Court held that there is no material difference in the principle applied in those cases and the approach expressed in GBF v The Queen (GBF)12 and other decisions which adopt the same approach as GBF. The Court importantly stated that any perceived difference lies in the application of the principles to the facts. This clarifies any uncertainty that practitioners may have had as to how important past decisions of the VSCA fit, not only among each other but also with the current decision of Velkoski.

    The Court also set out at [173] a further set of principles which it said could be distilled from the authorities:

    Tests which no longer apply under the Evidence Act: To avoid uncertainty, the Court stated that the tests laid down in Hoch v R13 and Pfennig14 have no application to the admissibility of tendency or coincidence evidence under the Evidence Act. Additionally, ss97–98 of the Evidence Act do not reinstate the test formerly laid down by the House of Lords in DPP v P15 or by the Victorian Parliament in s398A of the Crimes Act 1958.

    Concoction, collusion, collaboration or contamination: Concoction, collusion, collaboration or contamination among complainants and witnesses is a common tendency and coincidence evidence issue that arises in sexual offence cases. The current law is that in a case involving multiple complainants, the finding that it is “reasonably possible” that there may have been concoction, collusion, collaboration or contamination among them renders tendency or coincidence evidence inadmissible.16 In Velkoski, the Court expressed that for contamination or concoction to be relied on it should be raised on behalf of the accused before the trial judge and there must be a basis in the evidence for any such conclusion beyond mere opportunity for it to have occurred. Speculative suggestion will not be a sufficient basis.17 Further, if the issue of concoction, collusion, collaboration or contamination is relevant and raised by evidence, the Crown bears the onus of negating any such reasonable possibility.18

    Severance of charges: Although s194(2) of the Criminal Procedure Act 2009 contains a presumption that sexual offence charges joined in the same indictment should be tried together, the Court noted that this presumption is rebuttable and that the principles governing severance are those laid down by the VSCA in GBF.

    The offender’s state of mind: The Court noted that the Crown frequently relies on the offender’s state of mind when issuing tendency notices to include the offender’s interest in particular victims and his or her willingness to act on that interest. Their Honours held that the offender, having such a state of mind, discloses only rank propensity which is not admissible as tendency evidence and to resort to that particular state of mind to support tendency reasoning is “impermissible, highly prejudicial and unnecessary”.19 The Court expressed concerns that any reference to such a state of mind is calculated to divert the jury from focussing on the extent to which similar features of the previous acts make the occurrence of the offence charged more likely. Practitioners should focus on exposing the lack of similarities between the alleged past acts and the charged act in question. Many times the alleged tendencies are not similar to the charged act and the Crown is seeking to use tendency reasoning in a way which is technically inadmissible and highly prejudicial. It is vital to detect and oppose such evidence from being admitted at trial.

    Relevant principles for coincidence evidence

    Their Honours noted at [174] that the relevant principles for coincidence evidence are in many respects the same as the principles for tendency evidence outlined above.

    Coincidence reasoning is applied when there are similarities in the conduct of the accused on different occasions which reveal a pattern from which it may be inferred that he or she did a particular act or had a particular state of mind. Such reasoning can be applied to make it improbable that a series of events occurred by accident, or by sheer coincidence. Additionally, this reasoning can be used when there are similarities in the accounts given by two or more witnesses regarding the conduct of that accused which make it improbable that the witnesses are telling lies.

    The Court noted at [176] that having a greater number of such witnesses lessens the burden of their evidence needing to be distinctive. However, the Court emphasised that it is a prerequisite to the use of coincidence reasoning that there be such similarities between the accounts given by the various witnesses that it is improbable that the events occurred coincidentally.


    The VSCA in Velkoski has clearly expressed that tendency notices must be as specific as possible and not include the conclusions which a party wishes to draw from the tendency alleged. Tendency notices must be used to support tendency reasoning only. Relying on an offender’s state of mind in a prejudicial way is not acceptable. Similarly, pro forma and vague tendency notices will render tendency reasoning inadmissible. Practitioners must draft tendency and coincidence notices with great specificity and care. Clearly enumerating the relevant similarities is essential.

    The VSCA also clarified what constitutes significant probative value when assessing the admissibility of tendency or coincidence evidence. To qualify as having significant probative value, the alleged tendency or coincidence must show an underlying unity, pattern of conduct or modus operandi. To avoid confusion, the Court also cleared up any perceived uncertainty or conflict in regards to recent important decisions by the VSCA regarding tendency and coincidence evidence. The Court held that there is no material difference in the principles applied in those cases and that any perceived difference lies in the application of the principles to the facts of those cases.

    The admission of tendency and coincidence evidence can be highly prejudicial. Its admission alone can literally win or lose a case. It is essential that the law reflects this and maintains a strict approach to admissibility, especially in criminal trials where s101 of the Evidence Act dictates that tendency or coincidence evidence cannot be admitted unless its probative value substantially outweighs any prejudicial effect it may have on the accused. In this regard, Velkoski is a step in the right direction.

  • In Velkoski the Supreme Court of Appeal held that at trial several charges did not support tendency reasoning.
  • The Court criticised the generality of the Crown’s tendency notice and emphasised that tendency notices must be drafted with greater specificity.
  • The Court addressed the requirement of “significant probative value” and stated that for tendency or coincidence reasoning to be permitted, the features of the acts must reveal “underlying unity”, a “pattern of conduct” or a “modus operandi”.

  • Harry Venice is a barrister at the Victorian Bar practising in criminal law, including related areas, and family violence. His primary areas of focus are evidence, advocacy and trials. 1. Velkoski v The Queen [2014] VSCA 121. 2. Unreported, County Court of Victoria, Judge Campton, 24 April 2013 (date of conviction). 3. CGL v DPP [2010] VSCA 26 at [37] to [40]. 4. Note 3 above, at [40]. 5. Note 1 above, at [171]. 6. In listing these six features, the Court was quoting Odgers, Stephen, Uniform Evidence Law in Victoria, 2nd edn, 2013, Lawbook, pp466-467. 7. Note 1 above, at [168]; in which case the evidence would also support coincidence reasoning. 8. Note 3 above. 9. PNJ v DPP [2010] VSCA 88. 10. Nam v The Queen [2010] VSCA 95. 11. Murdoch (a Pseudonym) v The Queen [2013] VSCA 272. 12. GBF v The Queen [2010] VSCA 135. 13. Hoch v R [1988] HCA 50. 14. Pfennig v R [1995] HCA 7. 15. DPP v P [1991] 2 AC 447. 16. KRI v The Queen [2011] VSCA 127 at [33] and [56]; CEG v The Queen [2012] VSCA 55 at [24] to [27]. 17. See SPA v The Queen [2011] VSCA 306 at [11]. 18. SLS [2014] VSCA 31R [173]. 19. Note 1 above, at [173].


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