Propensity Evidence

Question 1

Propensity Rule

Answer 1

Section 40 Evidence Act 2006

(1) In this section and sections 41 to 43, propensity evidence -
(a) 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.

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

(3) However, propensity evidence about -
(i) a defendant in a criminal proceeding may be offered only in accordance with section 41, 42, 43, whichever is applicable; and
(ii) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance to section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and accordingly, this section does not apply to evidence of that kind.

Question 2

Prosecution May Offer Propensity Evidence

Answer 2

Section 43 Evidence Act 2006

Propensity evidence offered by prosecution about defendants

(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, omission, events or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitutes the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitutes 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 which are the subject of the evidence and the acts, omissions, events, or circumstances which constitutes the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of the 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 3

Admissibility and relevance

Answer 3

Persistent dishonesty across the board, embracing the number of offences, would not in itself bring the propensity rule into play. It is more likely to be deployed in cases involving specific offences with a discernible methodology or pattern.