The Exclusive Rules of Evidence

Question 1

List the exclusive rules of evidence

Answer 1

• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Question 2

What is case law R v Gwaze “Rules of admissibility are rules of law”

Answer 2

the Supreme Court has made it clear that rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion. Although they involve questions of judgement, they “prescribe standards to be observed”

Question 3

Discuss the relationship between the veracity and propensity rules

Answer 3

The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
* “veracity” – a disposition to refrain from lying, and
* “propensity” – a tendency to act in a particular way.
The 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

Question 4

What is S37 EA 06 Veracity Rules

Answer 4

(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 section 38 or, as the case requires, section 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 any 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 the proceeding.

Question 5

Evidence of the defendants veracity S38 EA 06

Answer 5

Evidence of 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.

Question 6

List what is required In order to be able to offer evidence of a defendant’s veracity

Answer 6

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.
* the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) 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);
* the proposed evidence must meet the substantial helpfulness test.
* The prosecution must get permission from the judge to offer the evidence.

Question 7

What must the judge take into account when giving permission for the prosecution to question the defendants veracity?

Answer 7

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.
* the time that has elapsed since any conviction about which the prosecution seeks to give evidence
* whether any evidence given by the defendant about veracity was elicited by the prosecution.
Note: 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.

Question 8

S40 EA 06 Propensity Rule

Answer 8

(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 about –
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 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 solely 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.

Question 9

What does propensity evidence include?

Answer 9

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

Question 10

What does propensity evidence NOT include?

Answer 10

• 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 (which is governed by the veracity rules set out in s37).

Question 11

General Rule of Propensity

Answer 11

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 complainant’s sexual experience

Question 12

S41 EA 06 Propensity Evidence about defendants

Answer 12

(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 the 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).

Question 13

What does S41(1) EA 06 incorporate in relation to Propensity evidence and defendant?

Answer 13

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 defendants 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). A defendant may offer propensity evidence when testifying, but also through other witnesses, if he or she does not testify

Question 14

What does S41(2) EA 06 Provide in relation to propensity evidence and defendant?

Answer 14

Section 41(2) provides that, by offering evidence of his or her propensity to act in a good way, the defendant opens the door to rebutting evidence from the prosecution or another party (with the permission of the judge). This is to prevent the judge or jury from forming the wrong impression about the defendant’s character.

Question 15

What was held in case law Wi v R?

Answer 15

In Wi v R 16 the Court of Appeal held that it was unlikely that permission will be granted under s41(2) when the only propensity evidence offered by the defendant is evidence that he or she has no relevant previous convictions.

Question 16

S43 EA 06 Propensity evidence offered by prosecution about defendants.

Answer 16

(1) 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.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the 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 and 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.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(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 17

In relation to Requirements for admission, what was held in Rei v R

Answer 17

The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must:
a) constitute “propensity evidence”, that is 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 the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Question 18

What was held in M v R et alia in relation to giving propensity evidence

Answer 18

In M v R et alia18 the judge must identify the relevance of the evidence, outline the competing positions of the parties, and warn the jury against illegitimate reasoning processes

Question 19

Define Probative Value vs Prejudicial Effect

Answer 19

The test for admissibility under s43 is whether 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. Unlike s8 and unlike the previous law, section 43(1) focuses only on the risk of a prejudicial effect on the defendant, not on broader issues regarding prejudicial effect on the proceedings.
Probative value must outweigh the risk of an unfairly prejudicial effect, which reflects the fact that all probative evidence will be prejudicial; the test is concerned with illegitimate prejudice.

Question 20

Discuss Conviction for earlier wrongdoing not necessary

Answer 20

The defendant does not have to have been convicted as a result of his or her earlier wrongdoing in order for it to qualify as admissible propensity evidence (although this may affect the assessment of the probative value of the evidence). Such evidence has been termed by the Supreme Court, in Fenemor22 as “prior acquittal evidence”. The test is the same as for propensity evidence concerning previous convictions. In addition, it is well established that conduct that is subsequent to the present offending is capable of being propensity evidence.

Question 21

Discuss what factors the judge must consider with propensity evidence and its prejudicial effect.

Answer 21

When assessing prejudicial effect on the defendant, the judge must consider the non-exhaustive list of factors in s43(4). If the judge decides that there is a risk that the propensity evidence will have an unfairly prejudicial effect on the defendant, he or she must then weigh that risk against the probative value of the evidence.