On the need for specificity in tendency notices

Posted by Anton Hughes on Saturday, October 25, 2014 with No comments
From the Victorian case of CGL v DPP [2010] VSCA 26:
39 Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency ‘to act in a particular way’, we hardly think that Parliament had in mind a tendency which would be expressed as generally as ‘a tendency to act upon sexual attraction to young girls aged between eight and 13 years’.
CGL was referred to with approval in PCR v The Queen [2013] VSCA 224.
CGL also sets out a useful extract from the pre-Evidence act case of Papamitrou [2004] VSCA 12 which informs the extract set out above, and is of course of practical benefit in understanding the issues in an application to sever a multiple complainant indictment:
Whether one describes these factors as providing an ‘underlying unity’, or a common ‘modus operandi’ or a ‘pattern of conduct’ is of little consequence. The ‘links’ were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of ‘infection’ the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive — and in my view strongly supportive — of the evidence of others.