Propensity

Question 1

Definition of propensity evidence

Answer 1

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)
1 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 2

When can the prosecution offer propensity evidence?

Answer 2

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 3

When assessing the probative value of propensity evidence, the Judge may consider, amongst other matters, the following….

Answer 3

(a)
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:

(b)
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c)
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances 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 are similar to, the subject of the offence for which the defendant is being tried:

Question 4

When assessing the prejudicial effect of evidence, the Judge may consider, amongst other matters, the following….

Answer 4

(a)
whether the evidence is likely to unfairly predispose 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.

Question 5

When is propensity evidence admissible in cases of deception?

Answer 5

Where there is a sufficiently strong connection between the offences

Question 6

When is evidence of propensity relevant under the admissibility rules?

Answer 6

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

R v Sharma - The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect