A tendency evidence objection is the formal challenge a defendant brings to stop the prosecution from placing evidence of past conduct before the jury. It sits before any question of how a jury uses that evidence: the objection is about whether the evidence gets in at all. Get it right, and the jury never hears the disputed material. Get it wrong, and the case shifts dramatically.
What the objection is really challenging
When prosecutors want to use past conduct to suggest a defendant has a tendency to act in a particular way, they must clear a statutory gateway. In New South Wales, that gateway is section 97 of the Evidence Act 1995 (NSW). The section requires the prosecution to establish two things: that the evidence has significant probative value, and that this value substantially outweighs any prejudicial effect on the defendant.
A tendency evidence objection attacks one or both of those requirements. It is not enough for the defence to argue that the evidence is damaging. All tendency evidence is damaging by design. The defence must show that the probative value falls short of "significant", or that the prejudice is so great that it swamps whatever legitimate use the evidence might have.
How the objection is brought
The process starts with a tendency notice. The prosecution must serve written notice on the defence before the trial, identifying the conduct they wish to rely on and the tendency they say it demonstrates. This notice requirement exists so the defence has enough time to prepare a proper challenge. Ann Valos Criminal Law has seen cases where deficient notices have provided a separate ground for exclusion entirely, before the merits of the evidence are even considered.
Once the notice is served, the defence responds by bringing the objection to the trial judge, usually in a voir dire held before the jury is empanelled or before the evidence is led. The judge hears argument from both sides and decides whether the evidence crosses the statutory threshold. If it does not, the evidence is excluded. If it does, the judge may also consider whether to give a tendency direction during the summing-up.
Ann Valos Criminal Law recommends filing written submissions to support a tendency objection wherever the factual or legal issues are complex. An oral objection on the run rarely carries the weight that a carefully structured written argument can.
The grounds defence counsel typically rely on
Courts in New South Wales and across Australia have examined tendency objections in detail. Three grounds come up repeatedly.
- Insufficient similarity. The alleged prior conduct is too different from the charged conduct to demonstrate a genuine tendency. If the past conduct involved a different type of victim, a different setting, or a fundamentally different method, the connection breaks down.
- The tendency is too broad. Prosecutors sometimes frame the tendency at a high level of generality, for example "a tendency to commit sexual offences against young people". Courts have repeatedly held that a tendency framed at too high a level of abstraction carries little genuine probative weight.
- Unreliable evidence of the past conduct itself. If the prior conduct is disputed, denied, or rests on a single unreliable account, the evidence supporting the tendency claim may not be strong enough to carry significant probative value.
A fourth consideration arises from a tendency evidence ruling itself: even where probative value is established, the court retains discretion under section 135 of the Evidence Act to exclude evidence whose prejudicial effect substantially outweighs its probative value. Defence counsel should argue both the section 97 threshold and the section 135 discretion in the alternative.
What courts actually weigh
The High Court's decision in IMM v The Queen [2016] HCA 14 settled a number of questions about how probative value is assessed. Probative value is assessed by reference to the evidence at its highest, assuming the jury accepts it. This means the defence cannot simply argue that the jury might disbelieve the tendency evidence. The objection must succeed on the face of the evidence itself.
That said, courts do look at context. The more central the tendency evidence is to the prosecution case, the more closely a court will scrutinise the prejudice side of the equation. If the tendency evidence effectively fills a gap in the direct evidence against the accused, excluding it may be the only way to ensure a fair trial.
Timing and procedure
Timing matters. An objection brought too late can be refused on discretionary grounds even if it has merit. Ann Valos Criminal Law advises clients and instructing solicitors to identify potential tendency evidence as soon as the brief of evidence is served, and to raise objections at the first available opportunity.
Where the tendency evidence relates to multiple complainants in the same proceeding, the objection often intersects with questions about joinder and cross-admissibility. Those are distinct but related issues, and they can affect each other's outcome. Counsel who treats a tendency objection in isolation, without considering how it interacts with a severance application, risks leaving an important procedural option on the table.
After the objection: if the evidence comes in
Losing a tendency objection is not the end of the matter. If the evidence is admitted, the defence focus shifts to limiting its scope and ensuring the trial judge gives an appropriate tendency direction at the conclusion of the evidence. A well-crafted direction can significantly cabin the use the jury is entitled to make of the material.
Ann Valos Criminal Law has handled tendency evidence challenges across a range of serious criminal matters. Ann Valos is an accredited specialist in criminal law with more than 15 years of experience, and the firm's team holds over 30 years of combined specialist experience. If tendency evidence is likely to feature in your matter, early advice on how to frame an objection is worth seeking before the hearing.