Rules of Evidence: Veracity and Propensity

Question 1

R v Gwaze

Answer 1

rules of admissibility (including s7 and s8) are rules of law and not matters of discretion Although they involve questions of judgement, they “prescribe standards to be observed”.

Question 2

Relationship between veracity and propensity rules

Answer 2

Divides character evidence at common law into two classes of evidences: “veracity”= a disposition to refrain from lying “propensity”= a tendency to act in a particular way.

Question 3

s37 of the Evidence Act: the veracity rules

Answer 3

1. cannot offer evidence about a persons veracity unless it is substantially helpful in assessing that persons veracity 2. evidence about a defendants veracity must also comply with sections 38 or 39 3. In deciding whether the evidence is substantially helpful, the judge may consider: lack of veracity, previous convictions, consistency of statements, bias, motive to be untruthful 4. a party may not offer evidence to challenge a witnesses veracity unless the judge determined the witness to be hostile (but may offer evidence of fact that are contrary) 5. veracity means the disposition of a person to refrain from lying.

Question 4

Substantial helpfulness

Answer 4

Light threshhold, of tendency The substantial helpfulness threshhold will only be met in exceptional cases: - where the prosecution wish to offer evidence about a defendants veracity (s38), and - where a defendant offers veracity evidence about a co-defendant (s39).

Question 5

In order to be able to offer evidence about a persons veracity:

Answer 5

1. prosecution must show that veracity is relevant 2. the defendant has offered evidence, or challenged veracity of a prosecution witness 3. the proposed evidence meets the substantially helpfulness test 4. judge must give permission for the evidene to eb offered.

Question 6

When deciding whether to give permission for the prosecution to question the defendant about his/her veracity, the judge may take into account:

Answer 6

1. the extent to which it has been put in issue 2. the time elapsed since any conviction the prosecution seeks to give as evidence 3. whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 7

Propensity evidence definition

Answer 7

means evidence that tends to show a persons persons propensity to act in a particular way or having a particular state of mind, being evidence of facts, omissions, events, or circumstances with which a person is alleged to have been involved.

Question 8

Propensity evidence includes

Answer 8

• propensity as to actions - propensity as to state of mind (eg lack of inhibition, love of violence)

Question 9

Propensity evidence does not include

Answer 9

• evidence of an act or omission that is one of the elements of the offence for which the person is being tried - evidence that is solely or mainly about veracity

Question 10

General Rule of Propensity

Answer 10

The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions relating to propensity evidence about a defendant, and in sexual cases, propensity evidence about a complainants sexual experience.

Question 11

Section 41 of the Evidence Act: Propensity evidence about defendants

Answer 11

1. a defendant may offer propensity evidence about themselves 2. if a defendant offers propensity evidence about themselves, the prosecution or another party may offer propensity evidence about a defendant (ie they open the door for rebutting evidence)

Question 12

Section 43 of the Evidence Act: propensity evidence offered by prosecution of defendants

Answer 12

1. the prosecution may offer propensity evidence only if the evidence has probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant

Question 13

When assessing the probative value of propensity evidence offered by the prosecution out the defendant, the judge must and may take into account and consider:

Answer 13

s43(2) must take into account the nature f the issue in dispute s43(3) may consider: the frequency of the acts/omissions events or circumstances have occurred, the connection in time between acts/omissions events or circumstances, extents of similarity between A/O E C, number of persons making allegations, whether the allegations may be the result of collusion or suggestability.

Question 14

Propensity evidence: when assessing the prejudicial effect of evidence on the defendant, judge must consider:

Answer 14

s43(4)(a): whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and s43(4)(b): whether the fact-finder will tend to give disproportionate weight to the propensity evidence

Question 15

Rei v R: Requirements for propensity evidence admission

Answer 15

the evidence must: a) constitute propensity evidence b) have a probative value in relation to the issue in dispute c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 16

What is “similar fact evidence”

Answer 16

Common law term for propensity evidence that is admissable under s43(1) - (admissability of the defendants previous wrongdoing where the probative value versus prejudicial inquiry is satifsfied)

Question 17

Probative value and prejudicial effect: onus?

Answer 17

The onus is on the prosecution to satisfy the court that the probative value does outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 18

Earlier conviciton for wrongdoing

Answer 18

Not necessary

Prior acquittal evidence okay - the test for inclusion is the same as for previsou convictions