A tendency evidence split hearing arises when a court decides that the admissibility argument and the jury direction question are too intertwined to resolve in a single hearing. Rather than folding everything into one proceeding, the trial judge separates them: first the ruling on whether the tendency evidence comes in at all, then, if it does, a later proceeding to settle the precise terms of the direction. Courts in New South Wales don't use the phrase "split hearing" in any statute, but it describes a real and recurring practice that any serious criminal defence needs to understand.
Why courts split tendency evidence proceedings
Tendency evidence is not simply admitted or rejected in a vacuum. Under the Evidence Act 1995 (NSW), the court must be satisfied that the evidence has significant probative value and that its probative value substantially outweighs any unfair prejudice to the defendant. That test can generate argument on its own. Once the court resolves it, a second set of questions opens up: exactly how must the jury be directed to use the evidence, and what limits apply?
Combining both questions in one hearing can become unwieldy. The facts relevant to admissibility are not always the same facts relevant to crafting a direction. A split hearing lets the judge give the admissibility question its full attention first, then revisit the direction question after the factual picture has sharpened during the trial itself. This is particularly common in multi-complainant matters where the tendency evidence involves conduct across different counts.
How a split hearing is structured
The first limb is an admissibility ruling. This is functionally the same as any tendency evidence ruling: the party seeking to rely on the evidence files the relevant notices, both sides make submissions on probative value and prejudice, and the judge decides whether the evidence clears the threshold. The ruling can be made before the trial begins or during the trial proper.
If the evidence is admitted, the second limb deals with the direction. The judge hears submissions on what the jury can and cannot conclude from the tendency evidence, and the terms of the direction are settled. Sometimes this happens immediately after the ruling. Other times the judge defers it until after the tendency evidence has actually been given, because the precise scope of the direction often depends on how the evidence landed in the trial.
The defence plays a different role in each limb. In the first, the focus is squarely on keeping the evidence out. In the second, the goal shifts to ensuring that any direction given to the jury is narrow and provides genuine protection against improper reasoning. These are separate tactical problems. Treating them as one is a mistake.
Relationship to voir dire and bundles hearings
A split hearing can overlap with other mechanisms. Where admissibility is genuinely contested, the admissibility limb may take the form of a tendency evidence voir dire, with witnesses called and cross-examined on the circumstances of the alleged conduct. This is distinct from a bundles hearing, which focuses on identifying and fixing the precise acts said to constitute the tendency conduct before any direction is crafted.
It's worth being clear about what a split hearing is not. It isn't a separate trial. It doesn't bind the jury. No conviction can result from the hearing itself. It is a procedural mechanism that resolves legal questions in a sequenced way, so the jury receives only the evidence the law allows and only with the directions the law requires.
What the defence should focus on at each stage
At the admissibility stage, the defence should scrutinise the tendency notice for procedural compliance. Notices that fail to specify the tendency with sufficient precision, or that were served late without adequate explanation, give the defence grounds to object before the merits are even reached. The probative value argument then takes centre stage: how similar is the conduct relied upon, how cogent is the connection to the charged offences, and how real is the risk of prejudice?
At the direction stage, the defence focus shifts entirely. Assuming the evidence is in, the job is to ensure the judge's direction tells the jury precisely what the evidence cannot be used for, as much as what it can. A direction that is too broad, or that effectively invites the jury to reason propensity rather than tendency, is itself a ground of appeal. Courts have overturned convictions on the basis of misdirection in this area.
Practical implications for defendants
A defendant facing tendency evidence needs a lawyer who understands that the split hearing structure creates two discrete opportunities to fight the evidence. Losing the first limb doesn't end the argument. The direction limb is often where the most durable protection is won.
Ann Valos Criminal Law Specialist handles complex tendency evidence matters, including those involving split hearings, voir dire proceedings, and multi-complainant trials. With over 15 years of criminal law experience and accreditation as a criminal law specialist, Ann Valos Criminal Law Specialist brings the technical understanding these proceedings require.
If you are facing a matter where tendency evidence has been notified or is anticipated, contact Ann Valos Criminal Law Specialist as early as possible. The admissibility argument is strongest before the hearing begins.