Propensity Evidence

Question 1

S40(1) Evidence Act 2006 (propensity evidence means)

Answer 1

(1) In this section and section 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

Question 2

S43(1) Evidence Act 2006 (propensity evidence offered by prosecution about defendant)

Answer 2

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

Question 3

S43(3) CA61 (assessing probative value of propensity evidence, judge may consider)

Answer 3

When assessing the probative value of propensity evidence, to judge may consider, among other matters, the following

(a) The frequency with which the acts, omissions, 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 constitute 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 in 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 which 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

Question 4

S43(4) CA61 (assessing prejudicial effect of evidence on the defendant, judge must consider)

Answer 4

(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 5

When is evidence of propensity relevant

Answer 5

Evidence of propensity will be subject to the admissibility rules under s7 Evidence Act 2006.

Evidence is relevant, under s7(3), if it has a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding”

The ultimate issue is the degree to which the probative value of the evidence outweighs its prejudicial effect (R v Sharma)