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

4.16.9 -Bench Notes: Context Evidence

Summary of Uniform Evidence Act Provisions

What is “Context Evidence”?

Admissibility of Context Evidence

Similar Types of Evidence

Determining Whether Evidence is “Context Evidence”

Directions About Context Evidence

Permissible uses of context evidence

Impermissible uses of context evidence

Standard of proof

Anti-Substitution Warning

Timing of the Charge

Summary of Uniform Evidence Act Provisions

  • Section 56requires context evidence to be relevant to the issues in the case in order to be admitted.
  • Section 137 requires the court to refuse to admit context evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.
  • Section 95 prohibits context evidence being used as tendency evidence or coincidence evidence unless it meets the requirements of ss97-101.

What is “Context Evidence”?

  1. “Context Evidence” is evidence that provides essential background information that allows the jury to assess and evaluate the other evidence in the case in a true and realistic context (see, e.g., R v AH (1997) 42 NSWLR 702).
  2. The evidence must relate to acts that were sufficiently proximate to the charged offences to demonstrate a continuing state of affairs between the parties (Gipp v R (1998) 194 CLR 106).
  3. Context evidence may assist the jury to assess and evaluate the other evidence given in the case in a complete and realistic context. Such evidence may make the evidence on specific charges more intelligible, or help to explain the parties’ conduct and mental states. In particular, context evidence can be used:
  4. To explain the complainant’s conduct or state of mind. For example, such evidence may explain conduct that would otherwise seem surprising or unlikely, such as submitting to the accused’s demands or failing to complain about the accused’s actions (B v R (1992) 175 CLR 599; R v Beserick (1993) 30 NSWLR 510; Rodden v R [2008] NSWCCA 53; KTR v R [2010] NSWCCA 271).
  5. To explain the accused’s conduct or state of mind. For example, the history between the accused and the complainant may explain why the accused felt able to act in a particularly brazen manner (R v Josifoski [1997] 2 VR 68; Gipp v R (1998) 194 CLR 106; c.f. Qualtieri v R [2006] NSWCCA 95 at [121]).
  6. To explain the circumstances of the alleged offence. This may prevent the jury from forming a false impression that the complainant’s allegations arose “out of the blue” (R v Loguancio (2000) 1 VR 235; KRM v R (2001) 206 CLR 221; B v R (1992) 175 CLR 599).
  7. Context evidence does not directly prove the accused’s guilt. The evidence merely helps the jury to understand evidence that may otherwise appear disjointed or implausible (R v AH (1997) 42 NSWLR 702; Qualtieri v R (2006) 171 A Crim R 463; R v Cornwell (2003) 57 NSWLR 82; JDK v R [2009] NSWCCA 76; R v RNM [2005] NSWCCA 396; KTR v R [2010] NSWCCA 271).
  8. The following types of evidence are unlikely to be relevant as context evidence:
  9. Evidence of isolated sexual acts against the complainant. Such evidence is unlikely to demonstrate the continuity necessary to establish context (R v Young [1998] 1 VR 402);
  10. Evidence of acts committed after, or a long time before, the alleged offence. Such evidence is unlikely to demonstrate the context that existed at the time of the alleged offending (DJV v R [2008] NSWCCA 272; R v Fraser, NSWCCA, 10/8/1998).

Admissibility of Context Evidence

  1. The common law principles relating to the admissibility of context evidence continue to apply (Qualtieri v R (2006) 171 A Crim R 463; R v AH (1997) 42 NSWLR 702).
  2. The mere fact that evidence provides context for an offence is not sufficient for its admission. Context evidence is only admissible if it is relevant to a fact in issue (Evidence Act 2008 s56).
  3. The party tendering the evidence must precisely identify the uses of the evidence (see above), and demonstrate how the evidence is relevant to issues in the case (Gipp v R (1998) 194 CLR 106; Tully v R (2006) 230 CLR 234; HML & Ors v R (2008) 235 CLR 334).
  4. The court must refuse to admit context evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused (Evidence Act 2008 s137).
  5. The court may also exclude or limit the use of such evidence using the general discretions contained in Evidence Act 2008 ss135-136.
  6. Context evidence must be admitted only with great caution.[2] While such evidence may be relevant, it will often only be minimally probative and may be highly prejudicial. A judge must carefully weigh the probative value of context evidence against the prejudicial effect of disclosing unlawful or disreputable conduct of the accused on other occasions (Tully v R (2006) 230 CLR 234; R v AN (2000) 117 A Crim R 176; R v Marsh [2000] NSWCCA 370).
  7. Evidence of prior convictions should generally not be admitted as context evidence. Due to the extreme prejudice attaching to such evidence, it is unlikely to be admissible on this basis even if it is indispensable to the prosecution case (Mokbel v R [2010] VSCA 354R).
  8. It is possible that evidence of other sexual activity between the complainant and the accused may not be admissible solely for the purpose of establishing context (compare the judgments of Hayne, Kirby and Gummow JJ in HML & Ors v R (2008) 235 CLR 334with the judgments of Gleeson CJ, Kiefel and Crennan JJ. See also R v Sadler (2008) 20 VR 69; DJV v R [2008] NSWCCA 272).
  9. Where context evidence is not led to enable tendency or coincidence reasoning, it is not subject to the admissibility requirements in Evidence Act 2008 ss97, 98 or 101 (FDP v R [2008] NSWCCA 317). However, the evidence cannot be used to prove a tendency or a coincidence (Evidence Act 2008 s95).

Similar Types of Evidence

  1. Care must be taken to distinguish “context evidence” from “relationship evidence”. “RelationshipEvidence” is evidence that demonstrates the nature of a relevant relationship and may be used as indirect evidence of the accused’s guilt(see, e.g., R v BJC (2005) 13 VR 407).
  2. For example, the jury may use relationship evidence that demonstrates that a state of hatred existed between the accused and the complainant to find that it is less likely that the complainant would have consented to sexual intercourse with the accused (R v Matthews (1990) 58 SASR 19. See Bench Notes: Relationship Evidence# for further information).
  3. While the way in which relationship and context evidence may be used differs, in many cases relationship evidence may also be used as context evidence (O’Leary v R (1946) 73 CLR 566).
  4. Context evidence must also be distinguished from:
  5. “Tendency evidence”: Evidence of a tendency a person has or had,from which the jury can infer a fact in issue (Evidence Act 2008 s97);
  6. “Coincidence evidence”: Evidence of two or more similar events that it is improbable occurred coincidentally, from which the jury can infer a fact in issue (Evidence Act 2008 s98);
  7. Evidence of uncharged acts that form an inseparable part of the narrative of the relevant event, from which the jury can ascertain the accused’s state of mind at the time of the offence (Jiang v R [2010] NSWCCA 277).
  8. See Bench Notes: Tendency Evidence# and Bench Notes: Coincidence Evidence# for further information concerning the admissibility and uses of tendency and coincidence evidence.
  9. When “context evidence” is not admitted as “tendency evidence” or “coincidence evidence”, the judge should direct the jury that it may not use the evidence in this manner. See “Impermissible uses of context evidence” below.

Determining Whether Evidence is “ContextEvidence”

  1. It is important for judges to determine whether, and, if so, how, evidence is sought to be admitted and used as context evidence, relationship evidence, tendency evidence and/or coincidence evidence. That determination will affect the admissibility test to apply, the way the evidence may be used and the directions to be given.
  2. For example, where the evidence is of uncharged sexual acts between the accused and the complainant, the court must determine whether the prosecution wants to use that evidence simply to show the background to the charged offences, or to show that the accused had an improper sexual interest in the complainant (a “guilty passion”). In the former case, the evidence will be admissible if it is relevant and its probative value outweighs the danger of unfair prejudice. In the latter case, the evidence will only be admissible if it meets the requirements of Evidence Act ss97-101 (as it is a form of tendency evidence) (R v ELD [2004] NSWCCA 219; R v AH (1997) 42 NSWLR 702; R v Dann [2000] NSWCCA 185. See Tendency Evidence: Bench Notes# for information concerning “guilty passion” evidence).

Directions About Context Evidence

  1. The need for any directions about context evidence will depend on whether a direction is sought and whether, despite the absence of any request, a direction is necessary to avoid a substantial miscarriage of justice (Jury Directions Act 2013 ss11, 13, 14, 15). See Bench Notes: Directions Under Jury Directions Act 2013 for information on when directions are required.
  2. Directions on context evidence must:
  3. Identify the evidence put forward as context evidence;
  4. Address the permissible uses of that evidence; and
  5. Address the impermissible uses of that evidence.
  6. Depending on the nature of the case, the directions may also need to address the standard of proof (Compare R v Sadler [2008] VSCA 198 and DJV v R [2008] NSWCCA 272).
  7. Any directions that suggest that context evidence may be used to support a complainant’s credibility must be carefully limited:
  8. The judge must describe the precise way in which the evidence may be used (e.g., to explain the complainant’s failure to complain or protest, or to show that the complainant does not allege that the offences occurred “out of the blue”); and
  9. The judge must not suggest that the evidence provides general support for the conclusion that the accused acted in a similar manner on the occasion alleged, as that would be a form of impermissible tendency reasoning (Qualtieri v R [2006] NSWCCA 95).
  10. No particular form of words is required for the direction. It must be tailored to the demands of the case, and must be clear, precise and directed (R v Grech [1997] 2 VR 609; HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).
  11. Judges should avoid using the term “uncharged acts” when describing context evidence, as it may invite speculation about why no charges were laid (HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).

Permissible uses of contextevidence

  1. It is not sufficient for the judge to simply say that context evidence provides the jury with the context for the offences. The judge must explain how the contextual information is relevant to the facts in issue (R v Nieterink (1999) 76 SASR 56).[3]
  2. The judge should tell the jury that they may use the evidence to place the offences within a complete and realistic context. This may assist the jury to appreciate and evaluate other evidence in the case or make that evidence intelligible. Depending on the nature of the case, context evidence may do this by:
  3. Helping the jury understand the complainant’s alleged conduct or state of mind;
  4. Helping the jury understand the accused’s alleged conduct or state of mind; or
  5. Dispelling the erroneous impression that the conduct occurred “out of the blue” (R v VN (2006) 15 VR 113; R v Vonarx [1999] 3 VR 618; R v Loguancio (2000) 1 VR 235; R v Dolan (1992) 58 SASR 501; Rodden v R [2008] NSWCCA 53).
  6. In the majority of cases, the judge does not need to direct the jury about the weight that should be given to evidence of uncharged acts that is admitted as context evidence. This is true even if the uncharged acts span the time before and after the alleged offences (R v Loguancio (2000) 1 VR 235).
  7. Where the evidence demonstrates the nature of a relationship between two relevant people in a case which may be used as indirect evidence of the accused’s guilt, the judge should also explain this use to the jury. See Relationship Evidence: Bench Notes# for further information.

Impermissible uses of context evidence

  1. If evidence has been admitted solelyto provide the context for the offending, the judge may need to direct the jury that:
  2. It has been admitted for a limited purpose only;
  3. It may not be used for any other purpose, such as to show a tendency on the part of the accused to commit certain acts; and
  4. It cannot be used as part of the chain of evidence leading to guilt (Boney v R [2008] NSWCCA 165; Martin v State of Tasmania [2008] TASSC 66; Qualtieri v R [2006] NSWCCA 95; CHG v R [2006] NSWCCA 66).
  5. If, in a sexual offence case, evidence of other sexual activity between the complainant and the accused is admitted solely as context evidence,[4] the judge may need to direct the jury that it cannot use that evidence to find that the accused had an improper sexual interest in the complainant, and that it was therefore more likely that he or she committed the offence(s) charged (Rodden v R [2008] NSWCCA 53).

Standard of proof

  1. When evidence is admitted solely to provide contextual information, judges will only need to direct the jury about the standard of proof applicable to that evidence if they perceive that there is a real risk of the jury using that evidence as an important step in their process of reasoning to guilt (R v Sadler [2008] VSCA 198; R v DWB [2008] VSCA 223; R v ML [2009] VSCA 106; R v Werry [2009] VSCA 94).
  2. Where the evidence is of uncharged sexual acts between the accused and the complainant,[5] a judge should ordinarily assume that there is such a risk. This is because in such cases it is likely that the jury will treat the evidence as evidence of a “guilty passion”, even if it is admitted purely for contextual purposes, and regardless of the directions given as to its permissible use (R v Sadler [2008] VSCA 198; PPP v R [2010] VSCA 110; R v EF [2008] VSCA 213; R v ML [2009] VSCA 106; HML & Ors v R [2008] HCA 16 per Kirby, Hayne, Gummow and Heydon JJ. C.f. DJV v R [2008] NSWCCA 272).
  3. In determining whether there is a real risk of the jury using evidence of uncharged acts as an important step in their process of reasoning to guilt, the nature of the offence charged may be relevant (see, e.g., PPP v R [2010] VSCA 110).
  4. Judges must not instruct the jury that they only need to be satisfied of context evidence on the balance of probabilities (R v Werry [2009] VSCA 94; R v FJB [1999] 2 VR 425; R v Loguancio (2000) 1 VR 235; Gipp v R (1998) 194 CLR 106).

Anti-Substitution Warning

  1. The judge may need to warn the jury that they may not substitute the context evidence for evidence of the offending. The jury must convict the accused solely on the evidence of the offence charged (R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510; R v Vonarx [1999] 3 VR 618; R v ATM [2000] NSWCCA 475; R v Greenham [1999] NSWCCA 8. See also Bench Notes: Separate Consideration).
  2. An “anti-substitution” warning instructs the jury that evidence of other conduct does not itself prove the offences charged. The accused can only be convicted of a charge if the jury is satisfied beyond reasonable doubt that the facts alleged in that charge occurred. It is impermissible to convict the accused on the basis that, although the conduct alleged has not been proven to the requisite standard, some other conduct alleged by the complainant occurred (R v Vonarx [1999] 3 VR 622; R v BJC (2005) 13 VR 407; R v Sadler [2008] VSCA 198).
  3. The need for an anti-substitution direction depends on whether the direction is sought and whether, despite the absence of any request, the direction is necessary to avoid a substantial miscarriage of justice (Jury Directions Act 2013 ss11, 13, 14, 15). See Bench Notes: Directions Under Jury Directions Act 2013 for information on when directions are required.

Timing of the Charge

  1. Short directions on the use of context evidence should be given the first time such evidence is led. The need for detailed directions in the final charge will depend on the significance of the evidence and its potential for misuse (see, e.g., KTR v R [2010] NSWCCA 271; R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510; Qualtieri v R [2006] NSWCCA 95).
  2. Where the evidence relates to sexual acts, careful directions about the use and the limitations on the evidence may be necessary both when the evidence is led and in the final charge (see R v JDK [2009] NSWCCA 76; DJV v R [2008] NSWCCA 272).

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[1] This document was last updated on 1 July 2013.

[2] It has been suggested that courts may have previously admitted context evidence too readily. For example, where there are multiple charges on the indictment in relation to the one complainant, the context of the offences may be sufficiently established by the evidence presented in relation to the charged offences (R v LRG (2006) 16 VR 89; Tully v R (2006) 230 CLR 234; R v GAE (2000) 1 VR 198).

[3]See “Uses of Context Evidence” above for examples of the way in which context evidence may be relevant to the facts in issue.

[4] It is not clear whether such evidence is admissible solely as context evidence. See “Admissibility of Context Evidence” above.

[5] The relevant acts need not be criminal in nature (R v McKenzie-McHarg [2008] VSCA 206).