Tendency evidence is rarely simple. When a prosecutor wants to place before a jury evidence of past conduct that shows an accused person's disposition to act in a particular way, courts don't just wave that material through. One of the least-discussed procedural steps that can shape a criminal trial is the bundles hearing, a contested procedure in which the parties argue about exactly which specific acts, out of all the prior conduct alleged, are capable of going before the jury at all. Getting this hearing right can shrink or substantially change the scope of what the jury ultimately learns about the accused.
What a tendency evidence bundles hearing actually is
A tendency evidence bundles hearing is a pre-trial or interlocutory proceeding at which the prosecution presents the specific instances of prior conduct it proposes to use as tendency evidence. The defence challenges individual episodes on any number of grounds: that the evidence is too remote in time, that it isn't sufficiently similar to the charged conduct, that it lacks reliability, or that its probative value is outweighed by the risk of unfair prejudice. The judge decides, episode by episode, which "bundles" of prior conduct are admissible and which are excluded.
The term "bundles" is a practical label rather than a statutory one. Courts use it because the prosecution typically groups its prior-conduct material into discrete packets, each describing a category or a specific alleged incident. Each bundle gets scrutinised separately, and the outcome isn't all-or-nothing across the board. A court might admit three bundles and exclude two others in the same hearing.
Why the distinction between the ruling and the bundles hearing matters
It's worth separating three related but distinct steps. First, the court decides whether to admit tendency evidence at all. That is the tendency evidence ruling. Second, if admission is permitted, the court considers which specific acts within the approved category are actually capable of supporting the tendency finding. That is the bundles analysis. Third, once the trial proceeds, the judge gives the jury directions on the limited use they can make of what they've heard.
A defendant who loses a tendency evidence ruling has not necessarily lost all argument about the scope of what the jury hears. The bundles hearing is a second filter. Even where the court has decided that prior conduct of a particular type is admissible in principle, individual acts within that category might fail at the bundles stage because they're too vague, too old, or rest on a single uncorroborated account that can't fairly be tested.
How courts assess each bundle
Courts apply the framework in the Evidence Act 1995 (NSW) when determining whether each individual bundle of prior conduct satisfies the statutory test. The threshold question is whether the evidence has significant probative value that substantially outweighs any prejudicial effect. That balancing exercise plays out differently for each bundle, because each alleged act carries its own factual specifics.
Courts look at three main considerations for each bundle. First, how specific and detailed is the alleged conduct? Vague assertions that "something happened" at an unidentified time and place are far harder to admit than an episode tied to a particular date, location, and set of surrounding circumstances. Second, how close is the similarity between the bundle and the charged offence? The more distinctive the similarity, the higher the probative value. Third, is there a realistic opportunity at trial to test the alleged act fairly? If the defence can't properly respond to a bundle because the prosecution's particulars are hopelessly imprecise, that weighs against admission.
The role of the tendency evidence notice
A bundles hearing can only proceed properly when the tendency evidence notice served by the prosecution is adequate. That notice must identify the tendency to be proven and the acts on which the prosecution relies. If the notice is deficient, the bundles hearing becomes contested on two fronts simultaneously: the parties argue about admissibility of the material and about whether the notice itself is sufficient to give the defence a fair opportunity to respond.
Courts have shown little patience for prosecution notices that list dozens of vague incidents without sufficient particularity. A notice that runs to many pages of undifferentiated alleged conduct invites a ruling that some bundles cannot be considered at all, not because the underlying evidence is necessarily excluded, but because the defence has not been given a fair chance to prepare.
What the defence can argue at a bundles hearing
The defence has more room to move at a bundles hearing than is sometimes appreciated. Counsel can argue that a specific bundle relies on conduct so old that its probative value is negligible compared to its prejudicial impact. Counsel can challenge the similarity between the alleged prior act and the charged offence, pointing out that similarity must be more than superficial. A prior act involving an entirely different class of alleged victim, or a fundamentally different setting, may not qualify as tendency evidence for the charged offence even if both involve broadly similar categories of conduct.
Another argument open to the defence is that the prosecution is seeking to admit a bundle that is really a disguised attempt to introduce propensity reasoning, rather than genuine tendency reasoning. Australian courts distinguish between evidence that proves a specific tendency relevant to the elements of the charge, and evidence that merely invites the jury to conclude that the accused is the type of person who commits offences. The latter is impermissible, and identifying that distinction at the bundles stage is one of the most effective moves available to defence counsel.
What happens after the bundles hearing
Once the court has determined which bundles are admitted and which are excluded, the parties know the precise scope of the tendency case the jury will hear. The prosecution frames its opening accordingly. The direction the judge later gives the jury is tailored to the admitted bundles, not to every prior act alleged in the notice.
Where bundles are excluded, the prosecution cannot revisit that material later in the trial without a fresh application and fresh justification. The exclusion at the bundles stage is not a merely procedural setback. It can remove from the jury's mind entire categories of alleged prior conduct that might otherwise have been devastating to the defence case.
Practical consequences for accused persons
For an accused person, the bundles hearing can be one of the most consequential moments in the entire proceeding, precisely because it happens before the jury is empanelled. A successful challenge to two or three bundles might transform a case built on an extensive pattern of alleged past conduct into one where the jury hears only a narrower and less compelling tendency case. That matters at the verdict stage. It also matters at sentencing if the jury convicts, because the character of the tendency evidence the jury considered shapes the court's understanding of the offending.
Ann Valos Criminal Law handles the full range of evidentiary challenges in criminal proceedings, including contested bundles hearings. Preparation at this stage requires detailed engagement with the factual material and a precise understanding of how the probative value test applies to each individual alleged episode.