Tendency evidence is one of the most actively litigated areas of Australian criminal law. Courts hear arguments about it before almost every sexual assault trial and in a growing number of fraud and violence matters. But there's a distinction that defendants and their families often miss: the tendency evidence ruling and the tendency direction are two separate things, decided at different stages and serving entirely different purposes. The ruling governs admissibility. The direction governs how a jury uses evidence that has already been admitted.
What a tendency evidence ruling actually is
A tendency evidence ruling is the court's formal decision on whether evidence of a defendant's past conduct or character trait can be placed before the jury at all. It happens before trial, usually at a pre-trial hearing or during voir dire. The prosecution must establish that the evidence has significant probative value and that this value is not substantially outweighed by the danger of unfair prejudice to the defendant.
The governing framework is the Evidence Act 1995 (NSW), specifically sections 97 and 101. Section 97 sets the threshold for tendency evidence in general. Section 101 imposes a higher bar when the prosecution relies on the evidence in a criminal trial: significant probative value must be shown, and the court must weigh that value against the real risk of the jury reasoning improperly from the evidence.
A ruling is not automatic. The party seeking to lead tendency evidence must generally give a tendency notice in advance, and the other side gets to contest admissibility. Ann Valos Criminal Law regularly appears at these rulings because the outcome can fundamentally reshape a prosecution case before a single witness takes the stand.
Why the threshold matters in practice
The High Court decision in Hughes v The Queen [2017] HCA 20 clarified that "significant" probative value requires more than mere relevance. The tendency evidence must meaningfully increase the probability of a fact in issue. That fact must actually be in dispute. If a defendant concedes the conduct occurred and disputes only its characterisation, tendency evidence directed at proof of the conduct itself may not clear the threshold at all.
Courts apply a three-part analysis. First: does the evidence rationally support an inference that the defendant has a particular tendency? Second: does that tendency make it more likely the defendant committed the charged act? Third: is the probative value significant enough to justify the prejudicial risk? All three must be answered affirmatively. One weak link can produce a ruling that excludes the evidence entirely.
The prejudice analysis is where defence counsel earns their fees. Tendency evidence carries a real danger that jurors will reason from "he did it before" to "he must have done it this time", bypassing the specific facts of the charged offence. That reasoning is precisely what the exclusionary rule guards against.
How a tendency evidence ruling differs from a tendency direction
These two things operate at opposite ends of the trial. A tendency evidence ruling happens before evidence is heard and decides whether the jury will hear the past conduct at all. A tendency direction happens after evidence has been admitted and tells the jury the narrow, lawful way to reason from it.
If tendency evidence is excluded at the ruling stage, there's nothing for a direction to address. The jury never hears the disputed material. That's the ideal outcome for a defendant facing prejudicial prior-conduct evidence. If the ruling goes against the defence and the evidence comes in, the trial judge must then give a carefully calibrated direction at the close of evidence, restricting the jury to using the tendency only for the purpose for which it was admitted.
A failed tendency evidence ruling doesn't end the fight. How the direction is framed, and whether the direction adequately corrects the risk of propensity reasoning, can still become grounds for appeal. Many successful appeals in NSW have turned not on the admissibility ruling itself but on a misdirection about tendency evidence's proper use.
What courts weigh in the admissibility decision
The factors courts consider are well-established in case law, even if their weight shifts from matter to matter. Specificity matters: evidence of a very specific, unusual conduct pattern carries stronger probative value than evidence of broadly similar behaviour. Proximity matters: events closer in time to the charged offence carry more weight. Distinctiveness matters: if the past conduct and the charged act share unusual features that are unlikely to be coincidental, the probative value climbs.
On the other side of the ledger, courts consider whether the tendency witness is independent of the complainant, whether the conduct described carries its own serious criminal character (which can distract a jury), and whether the defendant has had a fair chance to investigate and respond. A tendency notice served late, or one that is insufficiently specific, can itself ground an application for exclusion on procedural fairness grounds.
The interplay with tendency notices is significant. A notice that fails to particularise the conduct with enough precision may undermine the entire application, even where the underlying evidence would otherwise have been admitted.
Common mistakes defendants make
The biggest mistake is not contesting admissibility at all. Some defendants assume that because the past conduct happened, there's nothing to argue about. That's wrong. Admissibility and occurrence are separate questions. Evidence of something that did happen can still be excluded if it doesn't meet the statutory threshold.
A second mistake is treating the tendency ruling as a one-shot event. Courts can revisit admissibility during trial if the evidence develops in an unexpected direction. Defence counsel should monitor tendency evidence as the trial unfolds, not just at the pre-trial stage.
A third mistake is neglecting the sentencing consequences of a successful tendency evidence ruling. If the prosecution's tendency case collapses and charges dependent on that evidence are withdrawn or fail, sentencing proceeds on a narrower factual basis. That matters enormously when the court later assesses objective seriousness.
When to raise a tendency evidence challenge
Ann Valos Criminal Law raises tendency challenges early, because delay costs options. Once evidence has been heard by a jury, exclusion becomes impossible and the remedy shifts to direction and appeal. Pre-trial applications allow for proper argument, written submissions, and reasoned rulings that can themselves be the subject of appeal if they go the wrong way.
If you are facing charges where the prosecution has flagged prior conduct or character evidence, the question of whether a tendency evidence challenge is viable should be on the table at your first substantive conference with your lawyer. Ann Valos Criminal Law offers accredited specialist advice on exactly these questions.