The Exclusive Rules of Evidence Flashcards
Relationship between Veracity and Propensity
Veracity - a disposition to refrain from lying.
Propensity - a tendancy to act in a particular way.
These rules do not apply to evidence about a person’s veracity if the veracity is an element of the offence for which a person is being tried (e.g a prosecution for perjury).
The veracity and propensity rules do not apply to bail or sentencing hearings, except when the evidence is covered by Sec.44 (where it relates directly or indirectly to the sexual experience of the complainant with any other person other than the defendant, or his or her reputation in sexual matters).
Veracity
Sec.37 Veracity Rules
(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
(2) In a criminal proceeding, evidence about a defendant’s veracity must also comply with Sec.38 or, as the case requires, Sec.39.
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) Lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) Any previous inconsistent statements made by the person:
(d) Bias on the part of the person:
(e) A motive on the part of the person to be untruthful.
(4) A party who calls a witness -
(a) May not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) May offer evidence as to the facts in issue contrary to the evidence of that witness.
(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in a proceeding.
The veracity rules focus solely on truthfulness, and do not attempt to control evidence about the accuracy of a statement by a person who is attempting to tell the truth.
Section 37(4)(a) clearly signals that a party may not offer evidence to challenge the veracity of their own witness unless the witness is declared hostile. However, contrary evidence as to the facts in issue can be offered.
Substantial helpfulness
In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under Sec.7, in that it has to do more than simply have a tendency to prove or disprove a matter. In deciding whether evidence as to veracity is “substantially helpful”, the Judge may consider the matters in Sec.37(3)(a)-(e).
The substantial helpfulness test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.
There is no automatic right to ask any witness if they have been convicted of an offence. To be admissible, such questions must be substantially helpful in assessing the person’s veracity. The detailed provisions of the previous statute and common law no longer apply.
In R v K it was suggested that someone’s reputation for veracity is potentially admissible under Sec.37, but the substantial helpfulness threshold will only be met in exceptional cases:
Substantial helpfulness is not a sufficient test in two instances:
Where the prosecution wish to offer evidence about a defendant’s veracity (Sec.38), and
Where a defendant offers veracity evidence about a co-defendant (Sec.39).
Evidence of a defendant’s veracity
A defendant may offer evidence about his or her veracity provided it meets the substantial helpfulness test as set out in Sec.37.
38 Evidence of a defendant’s veracity
(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.
(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if-
(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and
(b) the Judge permits the prosecution to do so.
(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:
(a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:
(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence;
(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.
In order to be able to offer evidence of a defendant’s veracity:
1. The prosecution must show that veracity is relevant - permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.
2. The defendant has offered evidence about his or her veracity (by testifying or questioning a witness) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence - i.e must have orchestrated it).
3. The proposed evidence must meet the substantial helpfulness test.
4. The prosecution must get permission from the Judge to offer the evidence.
If an attack on the prosecution witness’s veracity was in reference to the facts in issue, the prosecution cannot offer evidence attacking the veracity of the defendant.
Propensity rule
Sec.40 Evidence Act 2006
(1) In this section and sections 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.
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3) However, propensity evidence -
(a) A defendant in a criminal proceeding may be offered only in accordance with Section 41 or 43, whichever section is applicable; and
(b) A complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with Section 44.
(4) Evidence that is soley or mainly relevant to veracity is governed by the veracity rules set out in Section 37 and, accordingly, this section does not apply to evidence of that kind.
Propensity evidence about defendants
Section 41 Evidence Act 2006
(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with permission of the Judge, offer propensity evidence about that defendant.
(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).
Section 41(1) incorporates the ability to offer evidence of good propensity:
The propensity limb of what was termed “good character evidence” at common law. However, it also allows defendant’s to offer:
Evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons), or
Neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi-it displays a propensity that is neither good nor bad).
