When a court admits tendency evidence, its work doesn't end there. A judge must also give the jury a tendency direction: a specific instruction explaining the only purpose for which that evidence can be considered, and the purposes for which it cannot. Without that direction, there is a real risk the jury uses damaging material in a way the law does not permit.
What tendency evidence is, briefly
Tendency evidence is evidence that a person has a tendency to act in a particular way or to have a particular state of mind. Under the Evidence Act 1995 (NSW), tendency evidence is generally inadmissible unless the party seeking to use it can show it has significant probative value that substantially outweighs the danger of unfair prejudice to the defendant. When it clears that high bar, it comes in, but it comes in under strict conditions.
The procedural step that precedes admission is the tendency notice, which gives all parties fair warning before the evidence is placed before the fact-finder. The tendency direction is what happens after admission: it's the safeguard that controls how a jury actually reasons with the material.
What a tendency direction tells the jury
A tendency direction has two components, and both are mandatory. First, it tells the jury the specific use it may make of the evidence. Second, it tells the jury the use it must not make.
The permitted use is narrow. If the court admitted the tendency evidence to prove the defendant had a tendency to act in a particular way, the jury may only use it for that stated tendency, applied to the specific issue it was admitted to address. It cannot be used as a general character attack, and it cannot be used to reason that because the defendant behaved badly in the past, he or she is more likely to be a bad person and therefore probably guilty of everything.
That second prohibition is the core of the direction. Propensity reasoning, reasoning from "bad person" to "therefore guilty now", is exactly what the direction is designed to prevent. Courts have long recognised this form of reasoning as both logically weak and deeply prejudicial.
When the direction must be given
Under the Evidence Act 1995 (NSW), a judge is required to give a tendency direction whenever tendency evidence has been admitted. The direction must be given at two points: when the evidence is first led before the jury, and again when the judge gives final directions before the jury retires to deliberate. Giving it once is not enough. The repetition is deliberate. The risk of misuse is highest when the jury is weighing up everything it has heard, and the final direction is designed to meet that risk directly.
A failure to give the direction, or a direction that is vague or incomplete, can be a ground of appeal. Defence lawyers routinely scrutinise the adequacy of the direction, particularly in multi-count proceedings where tendency evidence spans several alleged incidents.
How tendency directions relate to coincidence directions
Tendency directions are often confused with coincidence directions, and the two are sometimes given together. A coincidence direction applies when evidence of two or more events is admitted not to prove tendency but to prove it would be an extraordinary coincidence if the defendant were not responsible. The reasoning path is different. Tendency reasoning moves from character to conduct; coincidence reasoning moves from improbability of innocent explanation to guilt.
In practice, the same evidence sometimes carries both purposes, and a judge may need to explain both directions clearly and separately. Getting the distinction right matters because a misdirected jury might apply coincidence reasoning where only tendency reasoning was licensed, or vice versa.
What makes a direction adequate
Courts have said a tendency direction must be tailored to the facts. A generic instruction copied from a template, without reference to the specific evidence the jury has heard, is unlikely to be adequate. The direction needs to identify the evidence it applies to, state the tendency it was admitted to prove, and explain in plain language the chain of reasoning that is permitted and the chain that is not.
In longer trials involving multiple complainants or multiple counts, judges often have to give tendency directions for discrete pieces of evidence at different points during the trial. Keeping the jury oriented, across weeks of evidence, about which material can be used for which purpose, is one of the more demanding aspects of complex criminal trials.
Why this matters for defendants
Tendency evidence is, almost by definition, prejudicial. It tells the jury that the defendant has done something bad before. A proper tendency direction is one of the main mechanisms the law uses to limit the damage of that prejudice to what is legally justified. An inadequate direction does real harm: it leaves the jury free to reason in ways that inflate the weight of the tendency evidence beyond its legitimate scope.
If you are facing a trial where tendency evidence has been admitted, the adequacy of the direction your trial judge gives is directly connected to the fairness of your trial. The voir dire process is often used earlier in the proceeding to contest the admission of tendency evidence in the first place, but even when that contest fails, the direction remains a critical safeguard. Ann Valos Criminal Law advises defendants on both the admissibility challenge and the direction challenge, and monitors trial directions closely for grounds of appeal.
A practical note on appeals
Misdirection on tendency evidence has been a ground of successful appeal in New South Wales and Victoria. An appellate court will look at the direction actually given and ask whether, read as a whole, it left the jury with a proper understanding of the permitted and prohibited uses. A direction that technically mentions the prohibited use but buries it in language the jury is unlikely to understand may still be defective. Precision matters, and experienced criminal defence counsel will raise any deficiency at trial so the record preserves the point.
Ann Valos Criminal Law is an accredited criminal law specialist firm with over 15 years of experience in serious criminal matters, including trials where tendency evidence is in dispute. Ann Valos Criminal Law reviews trial directions as a standard part of case management, because a direction given incorrectly is a direction that can be corrected on appeal.