Propensity Evidence

Question 1

Propensity Rule
Act/Section

What is propensity evidence and what does it not include?

Answer 1

Evidence Act 2006 Section 40

(a) Means evidence that tends to show a persons 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 being tried
(ii) the cause of action in the proceeding in question

Question 2

The prosecution may offer propensity evidence about a defendant in a criminal case only if…

Answer 2

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

Propensity evidence offered by prosecution about defendants

Act/Section

When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following?

Answer 3

Evidence Act 2006 Section 43(3)

1. The frequency of which those acts have occurred
2. The connection in time between the acts and those of which the defendant is being tried
3. The similarity between the acts which relate to those of which the defendant is being tried
4. The extent to which those acts are unusual

Question 4

When assessing the prejudicial effect of evidence, the Judge MUST consider, among other matters, the following?

Answer 4

Evidence Act 2006 Section 43(4)

1. Whether the evidence is likely to unfairly predispose the fact-finder against the defendant, and
2. Whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions