A Tendency Notice is a formal document served on other parties before a trial, alerting them that a party intends to rely on tendency evidence. Tendency evidence is proof that a person has a tendency, or a disposition, to act in a particular way or to have a particular state of mind. Courts treat this kind of evidence with caution because it carries a real risk of unfair prejudice: jurors who hear that a defendant has acted badly before may judge the current charge on that history rather than the facts at hand.
What tendency evidence actually is
Under the Evidence Act 1995 (NSW), tendency evidence is admissible only if the court finds it has significant probative value that substantially outweighs any prejudicial effect on the defendant. That is a high bar. The term "tendency" refers to a pattern: repeated conduct, a consistent mindset, or a recurring method of operation that makes it more likely the defendant did what the prosecution alleges.
Common examples include a defendant charged with multiple sexual offences against different complainants, where the prosecution argues that similarities across incidents demonstrate a tendency. The same logic can appear in fraud matters, where a prosecution points to past dishonest dealings as evidence of a broader pattern of conduct.
What a Tendency Notice must contain
The notice is not a general warning. It must set out:
- The tendency the party intends to prove.
- The facts or events the party will rely on to prove that tendency.
- The other fact or issue in the proceeding that the evidence is said to make more likely.
Precision matters here. A vaguely worded notice risks being rejected entirely. The opposing party needs enough detail to prepare a meaningful response, and the court needs enough detail to conduct its admissibility assessment before the evidence reaches the jury.
The objection process and the admissibility hearing
Receiving a Tendency Notice does not mean the evidence will be admitted. The defendant has the right to object. If an objection is raised, the court holds a hearing, sometimes called a voir dire, to determine admissibility before the jury hears anything. Ann Valos Criminal Law regularly advises clients on how to mount these objections and what arguments carry the most weight.
A voir dire is a key procedural tool in these situations. The judge hears submissions from both sides, assesses the probative value of the proposed tendency evidence, weighs it against the risk of unfair prejudice, and rules on whether any of it can go before the jury. The defence can also argue that the tendency asserted is too broad, too remote in time, or not sufficiently similar to the current allegation to carry real weight.
Tendency notices and coincidence evidence
Tendency notices are closely related to, but distinct from, coincidence notices. Coincidence evidence is led to show that it would be an unlikely coincidence if two or more events occurred the way they did unless the defendant was responsible for both. The procedural requirements are similar, but the reasoning is different. Tendency asks: does this person have a pattern? Coincidence asks: can all these events really be unconnected? Both require advance notice to the opposing party for the same reason: fairness demands time to prepare a response.
What happens if no notice is given
Failure to serve a valid Tendency Notice is not a technicality the court ignores. Without notice, the tendency evidence is presumed inadmissible. The prosecution or other tendering party would need to apply for leave to rely on the evidence late, and courts don't grant that leave automatically. Where the notice is defective rather than absent, the court may allow an adjournment to rectify it, or may simply exclude the evidence. Either outcome can significantly affect the shape of a trial.
Why this matters for your defence
Tendency evidence, if admitted, can be devastating. It invites the jury to treat past conduct as a predictor of current guilt. Challenging the admissibility of a Tendency Notice, or limiting the scope of evidence admitted under it, is one of the most important pre-trial steps in any matter where the prosecution intends to lead such evidence.
Ann Valos Criminal Law works through these notices methodically: checking whether the procedural requirements were met, assessing whether the tendency alleged is genuinely supported by the proposed facts, and preparing submissions to exclude or narrow the evidence before it can influence a jury. This work happens well before the trial begins, often at the same time as other critical pre-trial steps like bail reviews and committal hearings.
If you've received disclosure that includes a Tendency Notice, or you're concerned about prior conduct being raised in a current proceeding, get advice from an accredited criminal law specialist as early as possible. The admissibility fight is won or lost before the jury is even empanelled.