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If I am accused of drunk and disorderly conducts and my alibi/defence is that I am a teetotaller since the last 10 years and even before that only seldom and very lightly drank, this makes it very reasonably doubtful that I had actually committed the alleged crime. Meanwhile if I was a former alcoholic who has despite their efforts at recovery averaged about one annual relapse for the last 6 years, this makes the charged allegations much more plausible and reasonable.

Likewise, if I’m charged to have committed a strict liability offence of making off without paying after playing on a tennis pitch, and I am an avid tennis player who plays there 6 days a week, and at least weekly if not more often am spoken to by the staff for taking one of the hire rackets without properly signing it out and paying for it, while known among the other club members for constantly grumbling about the recent 16.66% price rise and occasionally boasting that I make up for the hike by not paying one of my 6 days each week to my fellow members of the club, that would make the allegation as to the theft of services on the charged occasion much more credible than if they had been levied against someone who ran a website called the world tennis contemptors’ league and regularly gave public speeches about how stupid, pointless, vain, snobbish and boring of an activity tennis is.

Or than if I had in fact never set foot in the tennis club in question but actually trained every single day at a rival pitch next to my house and all the way across town.

Or imagine that the cctv seems to show me committing the act, while I claim it was merely a doppelgänger. If it showed the perpetrator arriving at 8:03am and I have always been known for arriving without fail between 8:00am and 8:05am, this would render the prospect of my presence and identity as the recorded figure in the CCTV footage much more credible than if I actually have only ever trained at 9:00pm in the past.

But, you might say, what could my past habits and proclivities ever have to do with the question at issue? What relevance could they possibly have to the simple question as to whether or not the figure recorded in the footage of that day was in fact me? However, I pose then to you the question, would these types of conjectures and motions to exclude such evidence of my past habits be accepted by a court in any other context than of considering a sexual assault complainant’s consent or non-consent?

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    Huh? There may be a valid question in here, but this is one of the hardest to read question titles I've seen in a while and the wall of text in the body needs some paragraph breaks at a minimum, and really enough structure to make it not a stream of consciousness. What precisely is the question?
    – ohwilleke
    Commented Oct 26, 2023 at 20:55
  • Sorry, 1) dealing with character limit constraints, 2) apologies for consent/content typo, 3) would probably have been clearer if I’d said defendant’s instead of question subject’s, but the comparison is of questions of defendants guilt to questions of sexual assault complainant’s consent. Commented Oct 26, 2023 at 21:09
  • The paragraph breaks alone make it a lot easier to read and figure out.
    – ohwilleke
    Commented Oct 26, 2023 at 21:15
  • @ohwilleke ok, glad to hear. They were originally written as comments and then concatenated so had weird line breaking and capitalisation as well which I have done some steps to fix however Jen seems to have given a pretty strong answer to the question already anyway. Commented Oct 26, 2023 at 21:19

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Judges always retain the residual discretion to exclude evidence where its probative value is outweighed by its prejudicial effect.

The quotations that follow are from R. v. Handy, 2002 SCC 56.

Similar fact evidence or propensity evidence is generally inadmissible

One classic category where this discretion has developed into a rule is for "similar fact evidence" when used to establish the propensity of the accused to do certain things or to merely impugn the accused's character. Evidence which would only attempt to show that the accused "has the propensity or disposition to do the type of acts charged" is to be excluded.

This is a rule from at least as far back as the 17th century and the Supreme Court of Canada has said "[t]he exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial."

"Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value."

There is an exception to the exclusion when the probative value of the evidence is high enough

There is, however, an exception to the exclusion: this is where the "similar facts" become so much more focussed and specific to the circumstances similar to the charge that the probative value of the propensity evidence becomes more clear. The test for admissibility is as follows:

evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

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Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

For example, in Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.), similar fact evidence was allowed to be admitted to show that there were dead babies buried in the backyard of the accused and at previous residences of the accused. The probative value of such coincidences was too high to warrant exclusion of the evidence.

Why then, is there s. 276 of the Criminal Code?

There may not be a strict necessity for it, given that the Supreme Court of Canada has already held that sexual history evidence is never relevant for an inference that the complainant is more likely to have consented or is less worthy of belief (R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577). So such evidence for those purposes would be excluded anyway. However, Parliament can duplicate common law rules in statute, and s. 276 essentially codifies the common law announced in Seaboyer (R. v. R.V., 2019 SCC 41, para. 35).

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The Tendency Rule

s97 of the Evidence Act 1995 says:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Most of the case law on this deals with tendency evidence sought to be introduced by the Crown rather than the defence - for obvious reasons.

In determining the probative value of evidence for the purposes of ss 97(1)(b) and 137, a trial judge should assume the jury will accept the evidence and, thus, should not have regard to the credibility or reliability of the evidence: IMM v The Queen at [51]–[52], [54], [58]; The Queen v Bauer at [69].

For evidence to be admissible as tendency it is not necessary that it exhibit an “underlying unity”, “a modus operandi” or a “pattern of conduct”: Hughes v The Queen at [34] approving the approach in R v Ford [2009] NSWCCA 306, R v PWD [2010] NSWCCA 209, Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682. It is not necessary that the common features be “striking”. What is needed is a sufficient link between the distinct events as to mean that one piece of conduct has significant probative value as regards another. That link need not be peculiar: Decision Restricted [2022] NSWCCA 246 at [93]; The Queen v Bauer at [57]. There is no general rule requiring close similarity between the tendency evidence and the offence: TL v The King [2022] HCA 35 at [29]. Depending upon the issues in the trial, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it: Hughes v The Queen at [37]. Section 97(1) does not condition the admissibility of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. Commonly there may be a similarity between the tendency asserted and the offences charged: Hughes v The Queen at [39].

The evidence will likely be disallowed as not probative to the drunk driving charge. The Crown needs to prove you were drunk at the time; whether you were drunk or sober at other times is irrelevant.

For the tennis club, the evidence is likely to be allowed in the first case because it is probative. But not in the other two cases because, similar to above, the Crown needs to prove you were there; where you were at other times is irrelevant.

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