Propensity Evidence

Question 1

Define propensity evidence

Answer 1

Section 40 (1) (a) - Evidence Act 2006

• 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 which a person is alleged to have been involved in

Question 2

What does propensity evidence include and NOT include?

Answer 2

Includes:
- propensity as to actions and state of mind

Doesnt include:

• evidence of act or omission that is an element of the offence
• evidence of veracity only

Question 3

Propensity evidence about a defendant

Answer 3

Propensity evidence about a defendant may be offered only in accordance with section 41, 42 and 43 whichever is applicable

Question 4

Propensity evidence about a complainant in a sexual case

Answer 4

Can only be offered in accordance with section 44.

Question 5

Propensity evidence offered by prosecution

Answer 5

Section 43:

• prosecution may offer propensity evidence against the defendant if:
• evidence has probative value and
• outweighs the risk of prejudicial effect on the defendant.

Question 6

WHAT DOES THE JUDGE HAVE TO CONSIDER WHEN ASSESSING THE PREJUDICIAL AFFECT?

Answer 6

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

Question 7

WHEN ASSESSING THE PROBATIVE VALUE OF PROPENSITY EVIDENCE, LIST 4 THINGS THE JUDGE MUST CONSIDER

Answer 7

• frequency, of A/O/E/C
• connection in time between A/O/E/C
• extent of the similarity between the A/O/E/C
• number of persons making allegations against the defendant

Question 8

What must the judge take into account when assessing the probative value of propensity evidence?

Answer 8

The nature of the issue in dispute

Question 9

WHEN MAY EVIDENCE OF PROPENSITY BE CALLED IN CASES OF DECEPTION?

Answer 9

When there is a sufficiently strong connection between the offences.

Question 10

WHAT IS THE ULTIMATE ISSUE FOR PROPENSITY EVIDENCE TO BE ADMISSIBLE?

Answer 10

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

• R v Sharma

Question 11

Define relevance regarding admissibility of propensity evidence - section 7

Answer 11

Evidence is relevant if it has a tenancy to prove or disprove anything that is of consequence to the determination of a proceeding.