Module 9 - Evidence (II) (Feb 2015) Flashcards
Who is eligible and compellable to give Evidence?
As a general proposition, all persons are eligible to give evidence – that is, they are lawfully able to give evidence on behalf of both prosecution and defence; and all persons who are eligible are compellable to give that evidence – that is, they can be required to testify against their will by both prosecution and defence.
However, some witnesses will, in fact, lack the capacity to give rational and coherent testimony. In relation to the hearsay rules, section 16 of the Evidence Act operates to make a person unavailable as a witness if he or she is “unfit to be a witness because of age or physical or mental condition”.
However, such people may still be compellable.
Witnesses who are otherwise compellable under the Act, can nonetheless be excused by a judge from testifying in criminal proceedings for “just cause” (s 165 of the Criminal Procedure Act 2011). This provision takes precedence over s 71. Furthermore, where a witness is eligible and compellable, and is not excused from testifying, he or she may nevertheless be able to be excused from answering certain questions because of a privilege, as discussed below.
In addition to the ability to have recourse to ss 7 (relevance) and 8 (general exclusion), or to excusal from testifying, there are some exceptions in ss 72-75 Evidence Act 2006 to the general proposition that all persons are eligible and compellable.
What is Section 72, Evidence Act 2006?
Judges, Jurors and Counsel
A person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding. This reflects the desire to avoid conflicts of interest and aims to ensure fairness and neutrality of the trial.
Unless the judge gives permission, a person acting as a juror or counsel in a proceeding is ineligible to give evidence in that proceeding. If a juror is given permission to give evidence, he or she would be discharged and the trial would proceed with the eleven remaining jurors.
A defendant who acts as his or her own counsel will not need judicial permission to testify.
What is Section 73, Evidence Act 2006?
Compellability of defendants and associated defendants in criminal proceedings
Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily, although such evidence may attract a warning under s 122 Evidence Act 2006 if it is from an associated defendant. Section 73 provides that:
(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a) the associated defendant is being tried separately from the defendant; or (b) the proceeding against the associated defendant has been determined.
(3) A proceeding has been determined for the purposes of subsection (2) if—
(a) the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or
(b the associated defendant has been acquitted of the offence; or
(c) the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
(4) In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a) an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted;
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
Section 73 therefore sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either “the prosecution or the defence in that proceeding” (s 73(1) – so a defendant can give evidence but does not have to).
An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s 73(4)(a)); or “that relates to, or is connected with,” the offence for which the defendant is being tried (s 73(4)(b)).
The two provisions were intended to encompass not only actual co-defendants in a criminal trial, but also persons charged with linked offending. For example, where a defendant is charged with burglary, then both an accomplice to the burglary itself, and someone charged with receiving goods stolen in the burglary would be an associated defendant under s 73.
- If the “associated defendant” is actually a co-defendant at the defendant’s trial, the ordinary rule of non-compellability will apply. This follows from the prohibition in s 73(1) against a “defendant in a criminal proceeding” being a compellable witness for either “the prosecution or the defence” (i.e. the defence of another defendant in the proceeding) in that case.
- If the associated defendant is not a co-defendant, then he or she will be compellable for both the Crown and the defence where the associated defendant is being “tried separately” from the defendant, or where the proceeding against the associated defendant has been “determined” (as defined in s 73(3)).
Other exceptions
- Under s 74 Evidence Act 2006, judges, in respect of the judge’s conduct as a judge (along with the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country) are not compellable to give evidence.
- Under s 75, where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s 19), or to appear as a witness to prove the matters recorded in the bank records.
What is Privilege?
Even when a witness is eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege. A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.
Several privileges are outlined in the Evidence Act 2006:
• privilege for communications with legal advisors – section 54
• privilege and solicitors’ trust accounts – section 55
• privilege for preparatory materials for proceedings – section 56
• privilege for settlement negotiations or mediation – section 57
• privilege for communications with ministers of religion – section 58
• privilege for information obtained by medical practitioners and clinical psychologists – section 59
• privilege against self-incrimination – section 60
• informer privilege – section 64
Note that there is no longer marital privilege – if any protection of disclosure to a spouse or partner is desired, this will be assessed under s 69 (overriding discretion as to confidential information).
When a claim of privilege is made, it is important to enquire whether the material in question, be it a communication, information, opinion, or document, is within the scope of the privilege in question, as these differ in scope (some protect “information”, others “communications”, for example).
The person who has a privilege has the right to refuse to disclose the information, and may require that the information is not disclosed by the person whom the information was given to or received from; or by any other person who has come into possession of it with the authority of the person who has the privilege. Where privileged material comes into the possession of a person who has not been authorised by the holder of the privilege to possess the material (e.g. surreptitious interception), the judge a wide discretion to prevent disclosure of the material (s 53 Evidence Act 2006).
Since the effect of a claim of privilege is that information is withheld from the court which might be of assistance in determining the case, the particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.
Privilege may be waived at any time by the person who is entitled to rely on it. Waiver ends the ability of the privilege holder to assert his or her rights (for example, the right to require that the material not be disclosed in a proceeding). However, this does not necessarily mean that privilege has been destroyed for all purposes. Despite a waiver, an “interested person” could still apply for an order, under s 52 Evidence Act 2006, that the privileged material remains inadmissible. This reflects the fact that sometimes someone other than the privilege holder will want to prevent privileged material being given in evidence.
What is Legal Professional Privilege?
Any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services is privileged (s 54 – what was termed “solicitor-client privilege” under the previous law); so too are communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding (s 56 – what was termed “litigation privilege” under the previous law). Legal professional privilege has been described as “more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests”(R v Derby Magistrates’ Court ex p B [1996] 1AC 487 per Gosforth CJ, p.507). The privilege in New Zealand is not to be balanced against competing public interests, as a lawyer has to be able to give a client an absolute and unqualified assurance that what they reveal to their lawyer will not be disclosed without their consent. The privilege therefore takes primacy over other public interests: B v Auckland District Law Society [2003] UKPC 38. There are a number of points to be made about the circumstances in which such legal privilege may be claimed:
Privilege for communications with legal advisers
- The communication must be intended to be confidential.
- The communication must be made for the purposes of obtaining or giving legal services. Communications which would be privileged if carried out directly between client and legal adviser will remain privileged if carried out between the “authorised representatives” of either or both of these parties if those communications were made for the purpose of obtaining legal services or could be said to be part of communication between client and solicitor. However, it does not extend to situations where the staff member overhears a “public” conversation where legal services are not being sought, or where the circumstances make it clear that the communication is not intended to be confidential.
- Privilege vests in the person seeking or receiving the legal services. However, the judge may still order that evidence of the communication must not be given, either on his or her own initiative, or on the application of an interested person other than the person who has the privilege (which could include the legal advisor, who may wish to avoid giving evidence about the communications even where the person who obtained legal services waives the privilege).
- The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence (if communications were made for such a purpose, the Judge must disallow privilege by virtue of s 67 Evidence Act 2006).
- Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken. The protection of confidentiality where a person possesses information or communications without the authority of the privilege is possible under s 53(4), whereby the judge may order that the information or communication not be disclosed.
What is Privilege for preparatory materials for proceedings?
- The privilege applies to a communication or information if it is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding.
- A person has a privilege if they are, or on reasonable grounds contemplates becoming, a party to the proceeding or apprehended proceeding.
- The privilege can be in respect of a communication between the party and any other person; a communication between the party’s legal adviser and any other person; information compiled or prepared by the party or the party’s legal adviser; and information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person. This means that, like under s 54, communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal advisor. In addition, communications by “other persons” may be protected too (this is not the case under s 54).
- Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.
What is Privilege for communication with ministers of religion?
Section 58 Evidence Act 2006 expands the previous law in its protection of communications with ministers of religion. It provides that:
(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
(2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—
(a) to receive confidential communications of the kind described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or comfort.
Section 58 covers religious and spiritual communications, whether or not they involve atonement for sin, and regardless of whether they are made within a structured religious community. Section 58(1) extends to any communication, including “a communication … contained in a document”, made for the religious or spiritual benefit of the communicator, or for the communicator’s spiritual comfort or advice. It also extends the term “minister of religion” beyond persons recognised as such under the traditional structures of organised faith. Instead, “minister of religion” is defined functionally. This looks to the religious or spiritual community itself in determining who plays a pastoral role in that community. For example, the definition applies to certain “kamatua” (elders) in the New Zealand Maori community whose role is to offer spiritual guidance or advice within that group.
Nevertheless, s 58 focuses on advice, benefit or comfort of a “spiritual” nature. It will not extend to communities that do not depend on the belief in some god, divine force or other spiritual basis for life.
In addition, protection under s 58 requires that communications are made in confidence and within the minister’s capacity as a minister of religion. The person must be at least partly impelled to speak to a minister of religion by his or her own religious or spiritual belief or practice, must seek out the minister for spiritual communication, and must aim to receive spiritual advice, benefit or comfort. An example can be seen in R v Mahomed HC Auckland CRI 2008-092-748 16 July 2009 at [58], where a privilege would not have been allowed as the conversations were not confidential (there was a third party present) and they were not made to enable the defendant to receive spiritual advice, benefit or comfort.
Communications must occur personally between the privilege holder and the minister of religion in order to attract privilege under s 58. However, a confidential communication between an individual and a minister of religion not falling within the s 58 definition of “spiritual advice, benefit or comfort” may be protected from disclosure under a court’s overriding discretion to deal with confidential information (s 69).
Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed, the judge (if satisfied that there is a prima facie case made out revealing a dishonest purpose) must disallow the privilege – s 67.
What is Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists?
Section 59 allows for a limited privilege protecting information obtained by medical practitioners and clinical psychologists. The rationale behind s 59 is to encourage drug addicts and persons with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. It can be invoked by any person involved in a criminal proceeding — such as a witness called to testify by the defendant or the Crown.
Privilege will not apply if the interaction between the individual and a health professional — whether it be for an “examination, test, or … any other purpose” — was “required by an order of a Judge, or by some other lawful authority”.
The s 59 privilege will apply only “to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct” (s 59(1)(a)). The definition will clearly include disorders resulting in criminal acts — such as paedophilia, pyromania, and kleptomania.
Privilege will not attach to statements made or information obtained during medical or psychological treatment for conditions that merely result from a person’s unlawful conduct, or are the by-product of criminal behaviour (for example, where when seeking treatment for a wound, the person discloses to the doctor that the injury was received during the course of criminal conduct).
The privilege applies to disclosures made by the patient to the medical practitioner (including a psychiatrist) or clinical psychologist and their staff, but not the reverse.
Disclosures made to a practitioner’s representative will be covered by the privilege, but the person must make the disclosure personally – disclosures by the person’s representative to the practitioner or staff will not attract s 59 privilege.
If not covered by s 59, communications made and information generated in the course of a person’s dealings with various types of health professionals may be protected from disclosure under a court’s overriding discretion to deal with confidences (s 69).
What is Privilege Against Self-incrimination?
Section 60 - Privilege against self-incrimination
(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
(3) Subsection (2) has effect—
(a) unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and
(b) to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.
(4) Subsection (2) does not enable a claim of privilege to be made—
(a) on behalf of a body corporate; or
(b) on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.
If the privilege against self-incrimination applies, s 60(2)(a) states that the privilege holder cannot be made to provide information he or she would otherwise have to supply.
The Act defines “self-incrimination” as “the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence”. This will apply not only to information directly admitting criminal acts, but also to circumstantial evidence of such acts. For example, a witness could assert the privilege when to give the evidence would implicate them as a party to offending.
The word “likely” in s 60(1)(b) has been held as confining the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”: Singh v R [2010] NZSC 161 at [31], quoting Cooke J in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 469.
The privilege will apply if a person is “required to provide specific information”
− in the course of a proceeding;
− by a person exercising a statutory power or duty; or
− by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence.
If there is no compulsion to produce the information, s 60 will not apply.
One person cannot claim the privilege against self-incrimination on behalf of another (except for the situation where a legal adviser asserts the privilege on behalf of a client). It can only be asserted by natural persons and not on behalf of a body corporate.
A defendant cannot assert the privilege when giving evidence about the matter for which the defendant is being tried. If a person on trial for a criminal act chooses to testify in his or her defence, privilege can only be asserted when the information sought poses a risk of conviction for a different offence to that being tried.
Under s 60(3), the protections offered by s 60(2) will apply “unless” and “to the extent” that a parliamentary “enactment removes the privilege against self-incrimination either expressly or by necessary implication”. This applies to both regulations and Acts. For example, s 130 of the Search and Surveillance Act 2012 requires certain “specified person[s]” to assist an enforcement officer who is exercising a search power in respect of data held in a computer system or other data storage device. While a specified person cannot be required to give any information tending to incriminate the person, they can be obliged to provide information or assistance that is reasonable and necessary to allow the enforcement officer to access the computer files or data storage device. This obligation exists even if the computer or data storage device contains or may contain information tending to incriminate the specified person.
Section 61 of the Act codifies a judicial discretion to safeguard an individual from self-incrimination under foreign law.
What are the laws around Confidentiality?
Sections 68-70 Evidence Act 2006 provide for judicial discretion to protect confidentiality. Privileges also protect confidentiality, but offer little room for a judge to rule that the information should be disclosed. Sections 68-70 allow for weighing of public interests in deciding whether to protect the confidentiality of communications. Section 76 protects the confidentiality of jury deliberations.
(a) Jury deliberations
The general rule is that evidence must not be given about the deliberations of a jury (anything said or done during the time that the jury was performing its fact-finding function). However, evidence can be given about issues connected with the jury if they did not form part of the jury deliberations, such as evidence about the competence, conduct by and capacity of a juror.
Evidence may also be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. In deciding whether to allow the evidence, the judge must weigh
− the public interest in protecting the confidentiality of jury deliberations generally, and
− the public interest in ensuring that justice is done in those proceedings.
(b) Protection of journalists’ sources
Section 68 provides that, where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered. A High Court judge may order that the protection will not apply if he or she is satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:
− any likely adverse effect of the disclosure on the informant or any other person; and
− the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
Nothing in s 68 prevents disclosure when the journalist or journalist’s employer is willing to disclose the information.
(c) Section 69 Evidence Act 2006: Overriding discretion as to confidential information
Section 69 allows the judge to prevent disclosure of confidential information after weighing up factors to determine if protection of the confidential material is justified in the public interest.
Section 69 permits a judge to protect confidentiality even in a case where the person to whom the confidence is imparted does not wish to preserve the confidence.
A judge can give a direction under s 69 on the judge’s own initiative or on the application of an “interested person”. Unlike the previous law, no “special relationship” needs to be demonstrated.
What is “Charachter” evidence?
Relationship between the veracity and propensity rules
The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
• “veracity” (disposition to refrain from lying) and
• “propensity” (tendency to act in a particular way).
The rules do not apply to evidence about a person’s veracity if that veracity is an element of the offence for which a person is being tried (e.g. a prosecution for perjury).
This part of the 2006 Act does not apply to bail or sentencing hearings except when the evidence 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.
What is Veracity?
Section 37 Evidence Act sets out the veracity rules. Evidence about a person’s veracity may not be given unless it is substantially helpful in assessing that person’s veracity (s 37(1)). Where the evidence is about a defendant’s veracity, it has to comply with s 38 or s 39 (s 37(2)). The remainder of s 37 provides that:
Veracity rules
… (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.
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.
Whether evidence is offered “about” a person’s veracity can be assessed by examining the purpose for which the evidence is offered. If the party offering the evidence does so to bolster or attack a person’s veracity, then the evidence is about veracity. If the evidence is offered for some other purpose, it is not evidence about veracity.
It is only evidence offered about a person’s veracity, not that offered for some other purpose, that is subject to the substantial helpfulness test. In Hannigan v R [2013] NZSC 41, a majority of the Supreme Court held that the veracity rules are confined to evidence which is not admissible independently of those rules. Prior to the Act, the only use which could be made of a witness’s previous inconsistent statement was to damage the witness’s reliability and could not be used as evidence of the truth of its contents. Under the Act, previous inconsistent statements are now able to help prove the truth of their contents. Furthermore, after Hannigan, as long as what is stated in a witness’s previous inconsistent statement has some relevance to the facts in issue, the statement cannot be classified as evidence about the witness’s veracity. It is, rather, evidence about an issue in dispute. Despite the extent to which the statement actually damages the witness’s veracity (and whether or not the party offering the statement was actually motivated to do by its potential to cause such damage), it remains completely untouched by the Act’s controls on veracity evidence.
What is Substantial Helpfulness (in terms of Veracity)?
This is a higher threshold than relevance under s 7 (R v Smith [2007] NZCA 400). The judge may consider matters in s 37(3)(a)-(e), such as convictions for dishonesty offences, bias, or a motive to lie.
The substantial helpfulness test applies to both evidence in chief and cross-examination.
There is no automatic right to ask any witness if they have been convicted of an offence. To be admissible, such questions must be substantially helpful in assessing the person’s veracity.
Evidence of someone’s reputation for veracity is potentially admissible under s 37, but the substantial helpfulness threshold will only be met in exceptional cases: R v K [2009] NZCA 176 at [64].
Substantial helpfulness is not a sufficient test in two instances:
• where the prosecution wish to offer evidence about a defendant’s veracity (s 38), and
• where a defendant offers veracity evidence about a co-defendant (s 39).
How do you offer Veracity evidence for a Defendant?
Evidence of a defendant’s veracity
A defendant may offer evidence about his or her veracity provided that it meets the substantial helpfulness test as set out in s 37. This is one limb of what was previously known as “good character evidence”.
Section 38 provides that the prosecution may offer evidence about a defendant’s veracity only if: • it is in issue (i.e. it is relevant)
- 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); • it meets the substantial helpfulness test; and
- the Judge permits the prosecution to do so.
In Hannigan v R [2013] NZSC 41, it was held that s 38(2) (which restricts the prosecution’s ability to offer evidence about the defendant’s veracity) did not bar prosecution evidence that the defendant had lied to the police about one of the circumstances of the offence.
Evidence of co-defendant’s veracity
Section 39 Evidence Act 2006 provides that a defendant may only offer evidence that challenges the veracity of a co-defendant if the evidence is relevant to a defence raised or proposed to be raised by the defendant, and the Judge permits the defendant to do so. The requirements of substantial helpfulness must also be met.
What is Propensity Evidence?
Sections 40-43 Evidence Act 2006 control evidence of propensity. For the purpose of this part of the Act, propensity evidence 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 a person is alleged to have been involved. It does not include evidence of an act or omission that is one of the elements of the offence for which the person is being tried.
General rule
The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions:
- propensity evidence about a defendant may only be offered in accordance with sections 41, 42 or 43; and
- in sexual cases propensity evidence about a complainant’s sexual experience may only be offered in accordance with section 44.
Outside of these restrictions, the general principles of relevance (s 7) and the general exclusion provision of s 8 will act as the check on propensity evidence (for example, propensity evidence about a witness may not be relevant under s 7).