Propensity

Question 1

What sections/act cover propensity?

Answer 1

Section 40 - 43 Evidence Act 2006

Question 2

What is the propensity rule?

Answer 2

S40(1)(a) EA 2006

Evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind and is evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 3

What cant be used as propensity?

Answer 3

S40(1)(b) EA 2006

Evidence of an act or omission that is 1 of the elements of the offence for which the person is being tried or the cause of the action in the proceeding in question

Question 4

When can the prosecution offer propensity evidence?

Answer 4

S43(1) EA 2006

Only if the evidence has a probative value in relation to an issue in dispute in the proceedings which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 5

Who assesses the probative value of propensity evidence?

Answer 5

The judge

Question 6

When assessing the probative value of propensity evidence what MUST the judge take into account

Answer 6

The nature of the issue of the dispute

Question 7

When assessing the the probative value of propensity evidence what MAY the judge consider?

Answer 7

(Acts Omissions Events Circumstances)

• Frequency of the AOEC
• Connection in time between AOEC of the propensity evidence and circumstances that constitute offence being tried
• Extent of similarity between AOEC of the propensity evidence and circumstances that constitute offence being tried
• number of persons making allegations which are the same/similar to the subject of the current offence being tried
• is the number of persons making the allegations are subject to collusion or suggestability
• extent to which the AOEC of the propensity evidence and circumstances that constitute the offence are unusual

Question 8

What are the two things the judge must consider when assessing the prejudicial effect of evidence on the defendant?

Answer 8

-whether evidence is likely to unfairly predispose the fact-finder against the defendant

and

-whether the fact-finder will give disproportionate weight in reaching a verdict to the propensity evidence

Question 9

When is propensity evidence admissible?

Answer 9

when there is a sufficiently strong connection between the offences

Question 10

When is the evidence relevant under the admissibility admissibility rule? (S7(3) Evidence Act 2006)

Answer 10

If it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding