Propensity

Question 1

Propensity

Answer 1

A tendency to act in a particular way

Question 2

Section 40(1)(a) & (b), Evidence Act 2006
(Propensity Evidence Rule)

Answer 2

(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) 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

Question 3

Section 40(3), Evidence Act 2006
(Propensity Evidence Rule - offering evidence)

Answer 3

Propensity evidence about -
(a) a defendant may be offered only in accordance with section 41, 42 or 43 (which ever applicable), and
(b) a complainant in a sexual case in relation to the complainant’s sexual experience must be offered in accordance with section 44

Question 4

Section 41(1), Evidence Act 2006
(Propensity Evidence about Defendants)

Answer 4

A defendant may offer propensity evidence about himself or herself (i.e. “good character” evidence or alibi evidence)

Question 5

Section 41(2), Evidence Act 2006
(Propensity Evidence about Defendants - Prosecution)

Answer 5

If the defendant offers propensity evidence about himself or herself, the prosecution may (with the permission of the Judge) offer propensity evidence about the defendant

(rebuttal evidence)

Question 6

Ways in which the prosecution may offer propensity evidence about a defendant

Answer 6

(1) If he/she offers propensity evidence about himself/herself (opens door to rebuttal), or
(2) Section 43 Evidence Act applies

Question 7

Section 43(1), Evidence Act 2006
(Propensity Evidence offered by Prosecution about Defendants)

Answer 7

The Prosecution may offer propensity evidence about a defendant 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 8

Section 43(2), Evidence Act 2006
(Propensity Evidence by Prosecution - Probative value - Judge must take into account)

Answer 8

When assessing the probative value of propensity evidence the Judge MUST take into account the nature of the issue in dispute (relevance)

Question 9

Section 43(3), Evidence Act 2006
(Propensity Evidence by Prosecution - Probative value - Judge may consider)

Answer 9

When assessing the probative value of propensity evidence, the Judge may consider -

(a) Frequency of the acts, omissions, events, circumstances
(b) Connection in time between acts, omissions, events, circumstances subject of evidence vs being tried
(c) Extent of similarity between acts, omissions, events, circumstances subject of evidence vs being tried
(d) Number of persons making allegations against the defendant that are the same as/similar to the offence being tried
(e) Regarding subsection (d), whether the allegations may be the result of collusion or suggestibility
(f) The extent to which the acts, omissions, events, circumstances subject of evidence vs being tried, are unusual

Question 10

Section 43(4), Evidence Act 2006
(Propensity Evidence by Prosecution - Prejudicial Effect)

Answer 10

When assessing the prejudicial effect of the propensity evidence, the Judge MUST consider -

(a) whether the evidence is likely to unfairly pre-dispose the fact-finder against the defendant, and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict

Question 11

Requirements in admission of propensity evidence (Rei v R)

Answer 11

The evidence must:
(1) Constitute propensity evidence
(2) Have a probative value
(3) Have a probative value that outweighs the risk that the evidence may have a prejudicial effect on the defendant

Question 12

Probative value and unfairly prejudicial effect

Answer 12

The greater the linkage and coincidence between the propensity evidence and the offence subject of trial, the greater probative value (Mahomed v R)