Propensity Evidence

Question 1

What is propensity evidence?

Answer 1

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

Question 2

What is not included in propensity evidence?

Answer 2

Evidence of an act or omission that is:
- an element of the offence being tried
- the cause of action in a proceeding

Question 3

When can propensity evidence be offered in a proceeding? (Important)

Answer 3

If it 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

Question 4

When assessing probative value, what must the judge consider? (Important)

Answer 4

• The frequency of the acts omissions, events circumstances (A, O, E, C)
• the connection in time between the A, O, E, C and the offence being tried
• the extent of similarity between the A, O, E, C and the offence being tried
• the number of person making allegations that the the same or similar to the offence being tried
• Whether the allegations may be the result of collusion or suggestibility
• the extent to which the A, O, E, C are unusual

Question 5

When assessing prejudicial effect the court must consider:

Answer 5

• whether propensity evidence is likely to unfairly predispose the fact-finder
• whether the fact finder will tend to give disproportionate weight to the propensity evidence

Question 6

Can propensity evidence include A, O, E, C after the offence being tried?

Answer 6

Yes

Question 7

Who decides if evidence is propensity evidence or just relevant?

Answer 7

The court

Question 8

Is propensity evidence subject to admissibility rules?

Answer 8

Yes