Tendency evidence is one of the more contested areas of Australian criminal law. Courts hear arguments about it at two distinct points in a trial: first, when deciding whether the evidence can come in at all, and second, when directing a jury on how to reason with it once it does. Those are separate legal events, governed by separate principles, and confusing them is a common mistake that can cost a defendant dearly.
What a tendency evidence direction actually does
A tendency evidence direction is a judicial instruction delivered to the jury after tendency evidence has been admitted. Its purpose is to limit the use the jury may make of that evidence. It doesn't come in before the evidence. It comes after, at the point when a judge tells the factfinder: you have heard this material, but you can only reason with it in this specific, constrained way.
Under the Evidence Act 1995 (NSW), tendency evidence is evidence of a person's tendency to act in a particular way or to have a particular state of mind. When a judge admits it, the direction exists to prevent the jury from using it as simple propensity reasoning. That is, the jury cannot conclude: this person did it before, so they probably did it again.
The direction confines the jury's reasoning to the specific tendency that the evidence establishes, applied only to the fact in issue for which it was admitted. This is a narrow channel. A jury that reasons more broadly than the direction permits has committed a legal error, and that error can ground an appeal.
How a tendency direction differs from a tendency ruling
A tendency evidence ruling operates at a completely different stage. It is the court's decision on admissibility, made before the evidence is heard by the jury at all. The ruling asks whether the evidence has significant probative value that substantially outweighs any unfair prejudice it might cause. If the court rules the evidence out, the jury never hears it, and no direction is needed.
The direction, by contrast, only becomes relevant once the ruling has gone against the defence. The ruling is a gatekeeping function. The direction is a damage-limitation function. Running them together in your thinking leads to muddled submissions at trial.
This distinction also matters procedurally. Tendency evidence rulings are typically sought in a voir dire or on a pre-trial application. The direction is settled closer to the end of the trial, often during the charge conference where both parties put their positions on the proposed jury directions. A defence lawyer who waits until the charge conference to raise admissibility concerns has already lost the ruling fight.
What a valid tendency direction must cover
A properly framed tendency direction addresses three things. First, it identifies the tendency the evidence is said to establish. Second, it tells the jury the specific fact in issue for which they may use that tendency. Third, it warns the jury against impermissible reasoning: they must not treat the evidence as simple proof of bad character or as making it generally more likely the accused committed the offence charged.
Judges are also required under section 165 of the Evidence Act 1995 (NSW) to warn the jury that tendency evidence may be unreliable if a party requests it. That warning is separate from the direction itself but typically given together. The defence has to request it. Failing to do so is a forensic error that cannot be fixed on appeal in most circumstances.
The relationship with tendency objections and tendency notices
A tendency evidence direction sits at the end of a sequence that starts much earlier. The prosecution first serves a tendency notice identifying the evidence it intends to lead and the tendency it asserts the evidence establishes. The defence then has an opportunity to object. If that tendency evidence objection succeeds, neither a ruling admitting the evidence nor a direction to the jury ever becomes necessary.
In practice, the direction the jury receives is heavily influenced by how precisely the notice and the ruling defined the tendency. A vague tendency, broadly stated, produces a vague direction that leaves the jury with more room to reason improperly. The defence interest at the notice and objection stage is therefore partly about preventing admission, and partly about ensuring that, if the evidence does come in, the tendency is framed as narrowly as possible.
When tendency directions are most often challenged on appeal
The most common appellate ground is that the judge's direction was too permissive. Either the permitted reasoning was stated too broadly, allowing the jury to treat the evidence as general propensity material, or the warning against impermissible reasoning was inadequate or absent.
A second, less common ground is a misdirection about the standard of proof that applies to the tendency evidence itself. The jury must be satisfied of the tendency before using it, but the precise standard has generated conflicting decisions at intermediate appellate level. The High Court considered this in Hughes v The Queen [2017] HCA 20, holding that the evidence need not be proved to any particular standard separately from the ultimate question of guilt. Courts have applied that principle inconsistently in the years since.
A third ground arises where the tendency was admitted for a specific fact in issue but the direction inadvertently permitted its use across the entire indictment. Where an accused faces multiple counts, this error can infect the jury's reasoning on every charge.
Practical steps at the charge conference
By the time the charge conference arrives, the ruling fight is over. The defence task is to secure the narrowest possible direction. That means putting written submissions on the draft direction before the conference begins, identifying precisely where the proposed wording strays beyond the admitted tendency, and requesting the section 165 unreliability warning in terms on the record.
If the judge refuses to include an element the defence sought, the refusal must be noted formally. An unexplained acceptance of the judge's draft can be construed on appeal as a concession that the direction as given was adequate. It is a short step, but it forecloses otherwise available grounds.
Ann Valos Criminal Law handles tendency evidence directions as part of broader trial preparation, working across complex sexual assault and serious criminal matters where this evidence is most frequently in contest. The firm's accredited specialists have over 30 years of combined experience in matters of this kind.