Propensity Flashcards
Propensity evidence definition
as per S 40(1), Evidence Act 2006
(1)(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
(1) (b) does not include evidence of an act or omission that is -
(i) one of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
Propensity Rules
as per S 40 (2), (3) and (4)
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person (GENERAL RULE)
(3) However, propensity evidence about -
(a) a defendant in a criminal proceeding may be offered only in accordance with Section 41, 42 or 43, whichever is applicable; and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in relation to section 44.
(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37.
Propensity evidence about defendants
S41, Evidence Act 2006
(1) A defendant in a criminal proceeding may offer propensity evidence about himself/herself.
(2) If a defendant offers propensity evidence about himself, the prosecution or another party may, with the PERMISSION of the JUDGE, offer propensity evidence about that defendant.
(3) S 43 does not apply to propensity evidence offered by the prosecution under S 41(2)
How can the prosecution offer propensity evidence about a defendant? (2)
- If the defendant offers propensity evidence about himself/herself (rebutting good character evidence with judge’s permission under S 41)
- If S 43 is satisfied.
When can propensity evidence be offered by the prosecution about defendants?
S 43 (1), Evidence Act 2006
(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.
When assessing the probative value, what MUST the judge take into account?
S 43(2), Evidence Act 2006
The NATURE of the ISSUE in dispute.
Once considered, the judge MAY consider S 43(3).
What MAY the judge consider when assessing the probative value? (6)
S 43(3), Evidence Act 2006
(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, etc 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, etc 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 similar to, the subject of the offence for which the defendant is being tried.
(e) Whether the allegations described in (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, etc which constitute the offence for which the defendant is being tried are UNUSUAL.
When assessing the prejudicial effect…? (2)
S 43(4), Evidence Act 2006
(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 DISPOSE 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.
Requirements for admission of propensity evidence as per Rei v R (3)
The evidence must:
(a) constitute “propensity evidence” as per the definition in S 40(1)(a);
(b) have a probative value “in relation to an issue in dispute” and other matter s that may be relevant, including those prescribed in S 43(3); and
(c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
Are convictions for earlier wrongdoing necessary for the evidence to qualify?
Conduct subsequent to the present offending?
No. The defendant does not need to have been convicted, though this may affect the assessment of the probative value of the evidence.
Such evidence is “prior acquittal evidence.” It is tested the same as evidence concerning previous convictions.
It is well-established that subsequent conduct is capable of being propensity evidence.
