Propensity Evidence

Question 1

What is propensity evidence?

Answer 1

Propensity evidence is evidence that tends to show a person’s propensity (tendency) to act in a particular way or have a particular state of mind

Question 2

Section 40 (1)(b) Propensity evidence does not include evidence of an act or omission that is…

Answer 2

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 3

Explain Section 44 regarding propensity evidence:

Answer 3

Propensity evidence about a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with Section 44.

Question 4

What does propensity evidence include?

Answer 4

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

Question 5

Explain in general what propensity evidence does not include:

Answer 5

• 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 (governed by the veracity rules set out in S37)

Question 6

General rule of propensity evidence:

Answer 6

General position is that a party may offer propensity evidence about any person.

Subject to some restrictions relating to propensity evidence about a defendant and in sexual cases, propensity evidence about a complainants sexual experience.

Question 7

Explain whether a defendant can offer propensity evidence about themselves:

Answer 7

A defendant may offer propensity evidence about himself.

If they do, the prosecution (with permission from judge) can offer propensity evidence about the defendant.

Question 8

How may the defendant offer propensity evidence about themselves:

Answer 8

When testifying but also through other witnesses.

Can give

• good character evidence
• evidence of disreputable conduct
• neutral propensity

Question 9

In what circumstances can the prosecution offer propensity evidence about the defendant?

Answer 9

In a criminal proceeding only if the evidence has a 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 10

What are 5 things the Judge may take into consideration when assessing the probative value of propensity evidence?

Answer 10

1) the frequency with which the acts, omissions, events or circumstances have occurred

2) the connection in time between the acts

3) the extent of the similarity

4) the number of persons making allegations

5) the extent to which the acts for which the defendant is being tried are unusual

Question 11

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider what?

Answer 11

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

Question 12

What is “similar fact evidence”?

Answer 12

Defendants previous wrongdoing where the probative value versus prejudicial inquiry is satisfied.

Question 13

Who has the onus of satisfying the court that the probative value of propensity evidence outweighs the prejudicial effect on the defendant?

Answer 13

The prosecution

Question 14

Does the defendant have to be convicted as a result of earlier wrongdoing in order for it to qualify as admissible propensity evidence?

Quote caselaw

Answer 14

No.

Such evidence has been termed by the Supreme Court in Fenemor as “prior acquittal evidence”