PROPENSITY - SHORT ANSWERS

Question 1

Section 40 (1)(a) of the Evidence Act 2006 defines propensity evidence as?

Answer 1

(1)(a) means evidence that tends to show a person’s propensity to act in a particular way or have a particular state of mind
This includes evidence of acts, events, omissions and circumstances with which a person is alleged to have been involved in.

Question 2

What are the requirements for the admission of propensity evidence as according to Section 43 (1) of the Evidence Act 2006?

Answer 2

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

The veracity and propensity rule do not apply to bail or sentencing hearings except when:

Answer 3

• The evidence relates directly or indirectly to the sexual experience of the complainant with any person other than the defendant.
• The evidence relates directly or indirectly to his or her reputation in sexual matters.

Question 4

Propensity evidence does not include?

Answer 4

Evidence of an act or omission that is one of the elements of which the person is being tried or
Evidence that is solely or mainly about veracity

Question 5

The court has a discretion to include propensity evidence against a defendant if?

Answer 5

The probative value of the evidence outweighs its prejudicial effect on the defendant.

Question 6

When can defence/prosecution offer propensity evidence?

Answer 6

A defendant in a criminal proceeding may offer propensity evidence about himself or herself.

If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the judge, offer propensity evidence about that defendant.

Question 7

When assessing the probative value of propensity evidence, the judge may consider?

Answer 7

• They frequency they have occurred
• The connection in time between them and those that constitute the offence.
• The extent of the similarity between them and those that constitute the offence.
• The extent to which them and those which constitute the offence are unusual
• The number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence.