Propensity Evidence

Question 1

What is propensity evidence?

Answer 1

EA06; S40(1)(a):

Evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind

Question 2

How else may propensity evidence be used?

Answer 2

To disprove a defence of mistake or innocent intention.

Question 3

How is propensity evidence demonstrated?

Answer 3

EA06; S40(1)(a):

Through evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.

Question 4

What is not able to be introduced as propensity evidence?

Answer 4

EA06; S40(1)(b)(i-ii):

(i) One of the elements of the offence for which the person is being tried
(ii) The cause of the action in the proceeding in question.

Question 5

Evidence Act 2006; Section 43

(Frequency, connection in time, similarity, number of people).

Answer 5

(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.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(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:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which 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 are unusual.

(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 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 6

In cases of deception, when would propensity evidence be admissible

Answer 6

Where there is a sufficiently strong connection between the offences.

Question 7

What is relevant evidence?

Answer 7

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

Question 8

R v Sharma - probative value v prejudicial effect

Answer 8

“The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect.”