3. The Exclusive Rules of Evidence - Veracity and propensity

Question 1

What are the two classes of character evidence?

Must Know

Answer 1

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
* “veracity” – a disposition to refrain from lying, and
* “propensity” – a tendency to act in a particular way.

Question 2

where do the rules of propensity and veracity not apply?

Answer 2

The veracity and propensity rules do not apply to bail or sentencing hearings, except when the evidence is covered by s44 (where it relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or his or her reputation in sexual matters).

Question 3

Outline S37 EA06?

Answer 3

37 Veracity rules
(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
(2) In a criminal proceeding, evidence about a defendant’s veracity must also comply with
section 38 or, as the case requires, section 39.
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.
(4) A party who calls a witness—
(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.
(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 4

What do the veracity rules deal with?

Answer 4

The veracity rules focus solely on truthfulness, and do not attempt to control evidence about the accuracy of a statement by a person who is attempting to tell the truth.

Question 5

In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. In practice what does substantially helpful mean?

Must Know

Answer 5

This is a higher threshold than relevance under s7, in that it has to do more than simply have a tendency to prove or disprove a matter. In deciding whether evidence as to veracity is
“substantially helpful”, the judge may consider the matters in s37(3)(a)-(e).

Question 6

When is substantial helpfulness not sufficient?

Must Know

Answer 6

Substantial helpfulness is not a sufficient test in two instances:
* where the prosecution wish to offer evidence about a defendant’s veracity (s38), and
* where a defendant offers veracity evidence about a co-defendant (s39).

Question 7

Outline S38 EA06?

Veracity

Answer 7

38 Evidence of defendant’s veracity
(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.
(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if -
(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
(b) the Judge permits the prosecution to do so.
(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
(a) the extent to which the defendant’s veracity or the veracity of a prosecution
witness has been put in issue in the defendant’s evidence:
(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence:
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 8

What is required in order to be able to offer evidence of a defendants veracity?

Veracity

Must Know

Answer 8

In order to be able to offer evidence of a defendant’s veracity:
* the prosecution must show that veracity is relevant – permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.
* the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it);
* the proposed evidence must meet the substantial helpfulness test.
* The prosecution must get permission from the judge to offer the evidence.

Question 9

What may the judge take into account when deciding whether to give permission for the prosecution to question the defendant about his or her veracity?

Veracity

Must Know

Answer 9

In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3)):
* the extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
* the time that has elapsed since any conviction about which the
prosecution seeks to give evidence
* whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 10

If an attack on the prosecution witness’s veracity was in reference to the facts in issue, what can the the prosecution not do?

Must Know

Answer 10

If an attack on the prosecution witness’s veracity was in reference to the facts in issue, the prosecution cannot offer evidence attacking the veracity of the defendant.

Question 11

Outline the propensity rule of S30 EA06?

Answer 11

40 Propensity rule
(1) In this section and sections 41 to 43, propensity evidence -
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is –
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3) However, propensity evidence about –
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.
(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules
set out in section 37 and, accordingly, this section does not apply to evidence of that
kind.

Question 12

What does propensity evidence include?

Must Know

Answer 12

• propensity as to actions
• propensity as to state of mind (eg a lack of inhibition, a love of violence).

Question 13

What does propensity evidence not include?

Must Know

Answer 13

• evidence of an act or omission that is one of the elements of the offence for which the person is being tried
• evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).

Question 14

What is the general rule that relates to propensity evidence?

Must Know

Answer 14

The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions relating to propensity evidence about a defendant, and in sexual cases, propensity evidence about a complainant’s sexual experience, as discussed in CIB 007.

Question 15

Outline Propensity evidence about defendants in S41 EA06

Answer 15

41 Propensity evidence about defendants
(1) A defendant in a criminal proceeding may offer propensity evidence about himself or
herself.
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.
(3) Section 43 does not apply to propensity evidence offered by the prosecution under
subsection (2).

Question 16

Section 41(1) incorporates the ability to offer evidence of good propensity: the propensity limb of what was termed “good character evidence” at common law. What else does it also allow defendants to offer?

Propensity

Must Know

Answer 16

• evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons), or
• neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad).

Question 17

What does S41(2) provide?

Answer 17

Section 41(2) provides that, by offering evidence of his or her propensity to act in a good way, the defendant opens the door to rebutting evidence from the prosecution or another party (with the permission of the judge). This is to prevent the judge or jury from forming the wrong impression about the defendant’s character.

Question 18

What was held by the court of appeal in Wi v R?

Answer 18

In Wi v R the Court of Appeal held that it was unlikely that permission will be granted under s41(2) when the only propensity evidence offered by the defendant is evidence that he or she has no relevant previous convictions.

Question 19

Outline S41(1) EA 06 Propensity evidence offered by prosecution about defendants?

Answer 19

(1) The prosecution may offer propensity evidence about a defendant in a criminal
proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 20

Outline S41(2) EA 06 Propensity evidence offered by prosecution about defendants?

Answer 20

(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.

Question 21

Outline S41(3) EA 06 Propensity evidence offered by prosecution about defendants?

Answer 21

(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances
which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the
subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual

Question 22

Outline S41(4) EA 06 Propensity evidence offered by prosecution about defendants?

Answer 22

(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must
consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

Question 23

The court in Rei v R clearly laid out the requirements for the admission of propensity evidence under S43 EA 06?
What are the requirements?

Must Know

Answer 23

The Court in Rei v R clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must:
a) constitute “propensity evidence”, that is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 24

What must the judge do as prescribed in M v R et Alia?

Answer 24

In M v R et alia18 the judge must identify the relevance of the evidence, outline the competing positions of the parties, and warn the jury against illegitimate reasoning processes

Question 25

What type of evidence does S43(1) include?

Answer 25

Section 43(1) includes evidence that is elicited in cross-examination, as this is included in the definition of “offer evidence” under the Act.

Question 26

What is the test for admissibility under S43?

Must Know

Answer 26

The test for admissibility under s43 is whether the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. Unlike s8 and unlike the previous law, section 43(1) focuses only on the risk of a prejudicial effect on the defendant, not on broader issues regarding prejudicial effect on the proceedings.

Question 27

In relation to S43, what must probative value do?

Must Know

Answer 27

Probative value must outweigh the risk of an unfairly prejudicial effect, which reflects the fact that all probative evidence will be prejudicial; the test is concerned with illegitimate prejudice.

Question 28

In relation to probative value, what was demonstrated in Rei?

Answer 28

In Rei19, it was demonstrated that the potential probative value of proposed propensity evidence (in that case relating to prior drug offending) will depend on the elements of the present charges the Crown will be required to prove and whether the task would be materially advanced by the evidence. In other words, the propensity evidence must be specific enough to allow evaluation against the issues at trial (the states of mind or acts required for the offence).

Question 29

What did the majority say in Mahomed v R?

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Answer 29

“The rationale for the admission of propensity evidence rests largely…on the concept of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to havea particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried…

In order to make the necessary assessment the Court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative, and how and to what extent it risks being unfairly
prejudicial…Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning.”

Question 30

Although a number of cases have expresed the view that the old law on “similar fact” remians relevant, for the issues that are covered by S43, the majority in R v Mahomed made a statement. What did the majority state?

Answer 30

“We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law. The Act substantially codified that case law and it is preferable, and consistent with s10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.”

Question 31

The defendant does not have to have been concited as a result of his or her earlier wrongdoing in order for it to qual9ify as admissible propensity evidence. What has the Supreme court termed such evidence?

Answer 31

Such evidence has been termed by the Supreme Court, in
Fenemor as “prior acquittal evidence”

Question 32

When assessing probative value of evidence what must the judge take into account?

Must Know

Answer 32

Under s43(2), when assessing the probative value of the evidence, the judge must take into account the nature of the issue in dispute. The Court in Vuletich gave recognition to the fact that the test should be tailored to the individual case

Question 33

What may the judge consider once they have considered the nature of the issue in dispute under S43(2)?

Must Know

Answer 33

Once the judge has considered the nature of the issue in dispute under s43(2), he or she may consider the non-exhaustive list of issues in s43(3).

Question 34

What must the judge consider when assessing prejudicial effect on the defendant?

Must Know

Answer 34

When assessing prejudicial effect on the defendant, the judge must consider the non-exhaustive list of factors in s43(4). If the judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she must then weigh that risk against the probative value of the evidence.