The test for admissibility of tendency evidence under s 97 of the Evidence Act 2008 (Vic) is distinct from the test for coincidence evidence under s 98; tendency evidence requires assessment of whether the degree of peculiarity in the acts, circumstances, or identity of victims gives the evidence significant probative value, and this is a question of fact and degree. Evidence of prior sexual offending against female lineal descendants may have significant probative value as tendency evidence even where the sexual acts themselves are commonplace, where the combination of the familial relationship, the similarity of the acts, the similar circumstances of commission, and the vulnerability of the victims establishes a distinctive pattern. A long temporal gap between prior offending and the charged offence does not necessarily deprive tendency evidence of significant probative value where the evidence demonstrates a specific tendency rather than mere general propensity.
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