Section 94 of the Evidence Act 1995 governs application. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 94(1)–(3) define when the tendency and coincidence rules are engaged.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this Part does not apply to evidence that relates only to the credibility of a witness. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that this Part does not apply so far as a proceeding relates to bail or sentencing.
The application of section 94 is illustrated in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1 at [82]. The Court held that section 94 sets out the circumstances in which the tendency rule and coincidence rule do not apply, in a form not derived from common law Authority.
A further example is ZBJ v The King (No 2) (14 November 2025)[2025] NSWCCA 187 (Adamson JA, Chen and Rigg JJ) at [38], where the Court applied section 94 in context. The Court held that section 94(4) displaces common law propensity restrictions and section 94(5) excludes collusion and contamination from the significant probative value assessment. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 94.
Practical takeaway:
Section 94(1)–(3) define when the tendency and coincidence rules are engaged
Section 94(4) displaces common law propensity restrictions
Section 94(5) excludes collusion, concoction and contamination from the significant probative value assessment
Part 3.6 must be applied according to its statutory effect, not common law propensity labels
Application questions turn on the purpose for which evidence is tendered
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [79]
Guiding proposition:
The Court held that section 94 sets out the circumstances in which the tendency rule and coincidence rule do not apply, in a form not derived from common law authority.
Guiding proposition:
The Court held that section 94(4) displaces common law propensity restrictions and section 94(5) excludes collusion and contamination from the significant probative value assessment.
Section 95 of the Evidence Act 1995 governs use of evidence for other purposes. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 95 distinguishes admissibility from permissible use at trial.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another.
The application of section 95 is illustrated in McPhillamy v R [2017] NSWCCA 130 at [83]. The Court held that sections 95 and 97 mean evidence must not be used to prove a tendency unless, used for that purpose, it satisfies section 97(1)(b).
A further example is El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 at [42], where the Court applied section 95 in context. The Court held that section 95 precludes use of evidence to prove a particular matter even when the evidence is relevant for another purpose. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 95.
Practical takeaway:
Section 95 distinguishes admissibility from permissible use at trial
Evidence relevant for a non-tendency purpose may still be inadmissible if used to prove a tendency
Sections 95 and 97 work together: use for a tendency purpose requires section 97 compliance
Limiting directions under section 136 cannot cure prohibited use under section 95
Trial counsel should identify both admissibility and use restrictions in tendency tenders
McPhillamy v R [2017] NSWCCA 130 at [93]
Guiding proposition:
The Court held that sections 95 and 97 mean evidence must not be used to prove a tendency unless, used for that purpose, it satisfies section 97(1)(b).
El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 at [42]
Guiding proposition:
The Court held that section 95 precludes use of evidence to prove a particular matter even when the evidence is relevant for another purpose.
Section 96 of the Evidence Act 1995 governs failure to act. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 96(1) permits notice that evidence of failure to act will be led. A reference in this Part to doing an act includes a reference to failing to do that act.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where a reference in this Part to doing an act includes a reference to failing to do that act. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 96 is illustrated in EPA v Gilmour and Anor [No.2] [2001] NSWLEC 119 at [2]. The Court held that a party may give notice under section 96(1) that it will seek to lead evidence of failure to act in a particular way on an occasion.
A further example is R v Vu [2013] NSWCCA 49 at [27], where the Court applied section 96 in context. The Court held that evidence of failure to act in a particular way on an occasion engages section 96 and requires proper notice before tender. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 96.
Practical takeaway:
Section 96(1) permits notice that evidence of failure to act will be led
Failure-to-act evidence engages distinct fairness concerns from tendency reasoning
Notice under section 96 is separate from tendency and coincidence notices
The section addresses state of mind and conduct omissions on a specific occasion
Counsel should identify the occasion and the asserted failure before tender
EPA v Gilmour and Anor [No.2] [2001] NSWLEC 119 at [2]
Guiding proposition:
The Court held that a party may give notice under section 96(1) that it will seek to lead evidence of failure to act in a particular way on an occasion.
Guiding proposition:
The Court held that evidence of failure to act in a particular way on an occasion engages section 96 and requires proper notice before tender.
Section 97 of the Evidence Act 1995 governs the tendency rule. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 97(1) requires reasonable notice and significant probative value before tendency evidence is admissible.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that subsection (1) does not.
The application of section 97 is illustrated in The King v AR [2026] HCA 10; 100 ALJR 545 at [78]. The High Court held that tendency evidence must have significant probative value under section 97 and, in criminal proceedings, satisfy section 101(2).
A further example is Hu v The King [2025] NSWCCA 66 at [104], where the Court applied section 97 in context. The Court held that once notice under section 97(1)(a) is met, the court must consider whether the evidence will have significant probative value under section 97(1)(b). Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 97.
Practical takeaway:
Section 97(1) requires reasonable notice and significant probative value before tendency evidence is admissible
Section 97(2) defines tendency evidence as evidence of character, reputation, conduct or a tendency
Section 97(2A) excludes collusion, concoction and contamination from the significant probative value assessment
Section 97(3) applies a different prejudice threshold in civil proceedings
Section 97A may presume significant probative value in child sexual offence proceedings
The King v AR [2026] HCA 10; 100 ALJR 545 at [78]
Guiding proposition:
The High Court held that tendency evidence must have significant probative value under section 97 and, in criminal proceedings, satisfy section 101(2).
Guiding proposition:
The Court held that once notice under section 97(1)(a) is met, the court must consider whether the evidence will have significant probative value under section 97(1)(b).
section 97A — Admissibility of Tendency Evidence in Proceedings Involving Child Sexual Offences
Section 97A of the Evidence Act 1995 governs admissibility of tendency evidence in proceedings involving child sexual offences. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 97A(2) presumes significant probative value for defined tendency evidence in child sexual offence proceedings.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further.
The application of section 97A is illustrated in R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [38]. The Court held that section 97A presumes significant probative value for tendency evidence of sexual interest in children in child sexual offence proceedings, unless the presumption is rebutted under section 97A(4).
A further example is R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [38], where the Court applied section 97A in context. The Court held that section 97A presumes significant probative value for tendency evidence of sexual interest in children in child sexual offence proceedings, unless the presumption is rebutted under section 97A(4). Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 97A.
Practical takeaway:
Section 97A(2) presumes significant probative value for defined tendency evidence in child sexual offence proceedings
The presumption may be rebutted under section 97A(4) if the evidence lacks significant probative value
Section 97A does not displace section 101(2) in criminal proceedings against an accused
Objections may challenge probative value despite the presumption or unfair prejudice under section 101
Child sexual offence proceedings are defined in section 97A(1)
R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [38]
Guiding proposition:
The Court held that section 97A presumes significant probative value for tendency evidence of sexual interest in children in child sexual offence proceedings, unless the presumption is rebutted under section 97A(4).
R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [34]
Guiding proposition:
The Court held that section 97A presumes significant probative value for tendency evidence of sexual interest in children in child sexual offence proceedings, unless the presumption is rebutted under section 97A(4).
Section 98 of the Evidence Act 1995 governs the coincidence rule. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 98(1) requires notice and significant probative value based on improbability of coincidence.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that to avoid doubt, subsection (1) includes the use of evidence from 2 or more.
The application of section 98 is illustrated in Addo v The Queen [2022] NSWCCA 141; 108 NSWLR 522 at [45]. The Court held that section 98 prevents coincidence reasoning unless the evidence has significant probative value based on improbable similarity between events.
A further example is Sampson v The King [2023] NSWCCA 239 at [55], where the Court applied section 98 in context. The Court held that coincidence evidence invites probabilistic reasoning that similar events could not have occurred coincidentally. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 98.
Practical takeaway:
Section 98(1) requires notice and significant probative value based on improbability of coincidence
Section 98(1A) may apply where evidence would satisfy both sections 97 and 98
Section 94(5) excludes collusion and contamination from the coincidence probative value assessment
Coincidence reasoning depends on improbable similarity between events, not mere repetition
Section 98(3) applies a different prejudice threshold in civil proceedings
Addo v The Queen [2022] NSWCCA 141; 108 NSWLR 522 at [50]
Guiding proposition:
The Court held that section 98 prevents coincidence reasoning unless the evidence has significant probative value based on improbable similarity between events.
Guiding proposition:
The Court held that coincidence evidence invites probabilistic reasoning that similar events could not have occurred coincidentally.
Section 99 of the Evidence Act 1995 governs requirements for notices. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 99 governs the content and form of tendency and coincidence notices.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation.
The application of section 99 is illustrated in Wright v The King [2025] NSWCCA 108; 118 NSWLR 24 at [47]. The Court held that whether reasonable notice has been given under section 97 is not determined solely by non-compliance with rules of court made under section 99.
A further example is Wright v The King [2025] NSWCCA 108; 118 NSWLR 24 at [47], where the Court applied section 99 in context. The Court held that whether reasonable notice has been given under section 97 is not determined solely by non-compliance with rules of court made under section 99. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 99.
Practical takeaway:
Section 99 governs the content and form of tendency and coincidence notices
Notices must identify the evidence, the reasoning basis and the proposed use with sufficient clarity
Reasonableness of notice is an evaluative judgment for the court
Opponents should scrutinise notices for timeliness, clarity and alignment with the trial tender
Failure to comply with section 99 may render tendency or coincidence evidence inadmissible
Wright v The King [2025] NSWCCA 108; 118 NSWLR 24 at [47]
Guiding proposition:
The Court held that whether reasonable notice has been given under section 97 is not determined solely by non-compliance with rules of court made under section 99.
Wright v The King [2025] NSWCCA 108; 118 NSWLR 24 at [52]
Guiding proposition:
The Court held that whether reasonable notice has been given under section 97 is not determined solely by non-compliance with rules of court made under section 99.
section 100 — Court May Excuse or Vary Requirements For Notices
Section 100 of the Evidence Act 1995 governs court may dispense with notice requirements. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 100(1) permits dispensation or variation of notice on application.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where the court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that the court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98.
The application of section 100 is illustrated in Crawford v The King [2023] NSWCCA 8 at [7]. The Court held that the court may dispense with notice requirements under section 100(1) for tendency evidence.
A further example is R v Harker [2004] NSWCCA 427 at [30], where the Court applied section 100 in context. The Court held that an application under section 100(1) may permit tendency evidence despite failure to give reasonable notice under section 97(1). Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 100.
Practical takeaway:
Section 100(1) permits dispensation or variation of notice on application
Dispensation is not automatic and depends on the circumstances of the particular tender
Section 192 factors guide the court's discretion to excuse notice failures
Excusing notice does not displace significant probative value or section 101(2) requirements
Pre-trial rulings should document any section 100 dispensation and conditions imposed
Crawford v The King [2023] NSWCCA 8 at [7]
Guiding proposition:
The Court held that the court may dispense with notice requirements under section 100(1) for tendency evidence.
Guiding proposition:
The Court held that an application under section 100(1) may permit tendency evidence despite failure to give reasonable notice under section 97(1).
section 101 — Further Restrictions on Tendency and Coincidence Evidence in Criminal Proceedings
Section 101 of the Evidence Act 1995 governs further restrictions on tendency evidence and coincidence evidence adduced by prosecution. It forms part of the Act's structured approach to admissibility and proof, and practitioners should treat the section as a distinct rule with its own conditions, exceptions and onus. Section 101(2) requires separate balancing of probative value against unfair prejudice.
The legislative scheme is directed to ensuring that only appropriate material is received in proceedings. In practical terms, the section operates where this section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. Parties should identify the provision at the admissibility stage, articulate the basis for reliance or objection, and be ready to address related provisions elsewhere in the Act that may overlap or qualify its operation. The Act further provides that tendency evidence about a defendant, or coincidence evidence about a defendant, that.
The application of section 101 is illustrated in Hughes v The Queen [2017] HCA 20; 263 CLR 338; 92 ALJR 52; 344 ALR 187; 264 A Crim R 225 at [17]. The High Court held that section 101(2) imposes a further restriction on prosecution tendency or coincidence evidence, which cannot be used unless its probative value outweighs the danger of unfair prejudice.
A further example is Bauer v R [2018] HCA 40; (2018) 264 CLR 56 at [62], where the Court applied section 101 in context. The High Court held that section 101(2) requires separate balancing of probative value against unfair prejudice for prosecution tendency or coincidence evidence, even where significant probative value under section 97 is established. Together with other authorities, this decision assists practitioners to anticipate how trial judges are likely to approach objections, rulings and directions under section 101.
Practical takeaway:
Section 101(2) requires separate balancing of probative value against unfair prejudice
Evidence may pass significant probative value under section 97 or 98 yet fail section 101(2)
Unfair prejudice is the danger of impermissible propensity or coincidence reasoning, not mere forensic damage
Section 136 limiting directions cannot substitute for the pre-admission section 101(2) exercise
The prosecution bears the burden of establishing that probative value outweighs unfair prejudice
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [17]
Guiding proposition:
The High Court held that section 101(2) imposes a further restriction on prosecution tendency or coincidence evidence, which cannot be used unless its probative value outweighs the danger of unfair prejudice.
Bauer v R [2018] HCA 40; (2018) 264 CLR 56 at [62]
Guiding proposition:
The High Court held that section 101(2) requires separate balancing of probative value against unfair prejudice for prosecution tendency or coincidence evidence, even where significant probative value under section 97 is established.
