Propensity

Question 1

What sections dictate how and when propensity evidence can be given

Answer 1

Sections 41, 42, 43 and 44

Question 2

What may the judge consider when assessing the probative value of propensity evidence?

Answer 2

• frequency of acts/omissions/events/circumstances
• connection in time and similarity between the acts/omissions/events/circumstances which are the subject of the evidence and what the defendant is being tried for
• number of persons making allegations which are the same/similar to the subject of the offence and whether these allegations are a result of suggestibility or collusion
• How unusual the act/omission/events/circumstances in the evidence and the subject for which the defendant is being tried for are

Question 3

What can propensity evidence helpful for?

Answer 3

Disproving a defence of mistake or innocent intention

Question 4

What is the admissibility rules?

Answer 4

S7 EA 2006

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

Question 5

what is the ultimate issue with propensity evidence?

Answer 5

The ultimate issue is the degree to which the probative value outweighs its prejudicial effect

Question 6

What is the propensity rule

Answer 6

S40(1)(a) EA 2006

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

Question 7

What is not included as propensity evidence?

Answer 7

S40(1)(b) EA 2006

Does not include 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 action in the proceeding in question

Question 8

When can the prosecution offer propensity evidence about a defendant in a criminal proceeding?

Answer 8

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 9

Act and section

Answer 9

S40, Evidence Ac t 2006

Question 10

In what type of proceedings can propensity evidence be given?

Answer 10

Both criminal and civil

Question 11

When assessing the prejudicial effect of evidence on the defendant the judge…

Answer 11

must consider whether the evidence is likely to unfairly predispose the fact-finder against the defendant
and
whether the fact-finder will tend to give disproportionate weight reaching a verdict to evidence of other acts or omissions

Question 12

What is section 43 EA 2006?

Answer 12

Propensity evidence offered by prosecution about defendant

Question 13

When assessing the probative value of propensity the judge…

Answer 13

must take into account the nature of the issue in dispute