Veracity and propensity Flashcards
Relationship between the veracity and propensity rules
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,
except when the evidence is covered by s44 (where it relates directly or
indirectly to the sexual experience of the complainant with any person other
than the defendant, or his or her reputation in sexual matters).
Veracity
Section 37 of the Evidence Act sets out the veracity rules:
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
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.
Veracity (continued)
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 (see chapter 5). 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 s7, 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 s37(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 15 it was suggested that someone’s reputation for veracity is
potentially admissible under s37, 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
(s38), and
* where a defendant offers veracity evidence about a co-defendant (s39).
Evidence of a defendant’s veracity
A defendant may offer evidence about his or her veracity provided that it
meets the substantial helpfulness test as set out in s37.
38 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.
In order to be able to offer evidence of a defendant’s veracity:
* 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.
In deciding whether to give permission for the prosecution to question the
defendant about his or her veracity, the judge may take into account (s38(3)):
* 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.
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
Sections 40-43 of the Evidence Act 2006 govern evidence of propensity.
Section 40 outlines the propensity rule:
40 Propensity rule
(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.
Outside of the restrictions in s40(3) and (4), the general principles of
relevance (s7) and the general exclusion provision of s8 will act as the check
on propensity evidence (for example, in some circumstances propensity
evidence may not be relevant under s7).
Propensity evidence includes
- propensity as to actions
- propensity as to state of mind (eg a lack of inhibition, a love of violence).
Propensity evidence does not include
- 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).
General rule
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, as discussed in CIB 007.
Propensity evidence about defendants – s41 Evidence Act 2006
41 Propensity evidence about defendants
(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).
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.
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. 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.
Subject to the need to obtain the judge’s permission, rebuttal evidence can
come through the questioning of any witness, including cross-examination of
the defendant if he or she testifies.
It is important to note that, unlike the previous law, the door is not opened by a
defendant’s attack on the propensity of a prosecution witness. Therefore, the only
way that the prosecution can offer propensity evidence about a defendant is if he
or she offers propensity evidence about himself/herself; or if s43 is satisfied.
Propensity evidence offered by prosecution about defendants
43 Propensity evidence offered by prosecution about defendants
(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.
Requirements for admission
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.
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
Note that, despite the wording of s43(1), the prosecution may offer propensity
evidence about a defendant under s41(2) if the requirements of that section
are satisfied.
Section 43(1) includes evidence that is elicited in cross-examination, as this is
included in the definition of “offer evidence” under the Act.
Section 43 allows for admissibility of the defendant’s previous wrongdoing
where the probative value versus prejudicial inquiry is satisfied (s43(1)). This
type of evidence was called “similar fact evidence” at common law.
Probative Value and Prejudicial Effect
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.
In Rei19, it was demonstrated that the potential probative value of proposed
propensity evidence (in that case relating to prior drug offending) will depend
on the elements of the present charges the Crown will be required to prove
and whether the task would be materially advanced by the evidence. In other
words, the propensity evidence must be specific enough to allow evaluation
against the issues at trial (the states of mind or acts required for the offence).
As the majority in Mahomed v R20 said:
“The rationale for the admission of propensity evidence rests largely…on the
concept of linkage and coincidence. The greater the linkage or coincidence
provided by the propensity evidence, the greater the probative value that
evidence is likely to have. It is important to note, however, that the definition
of propensity evidence refers to a tendency to act in a particular way or to have
a particular state of mind. It is necessary, therefore, that the propensity have
some specificity about it. That specificity, in order to be probative, must be
able to be linked in some way with the conduct or mental state alleged to
constitute the offence for which the person is being tried…
In order to make the necessary assessment the Court must carefully identify
how and to what extent the propensity evidence has sufficient particularity to
be probative, and how and to what extent it risks being unfairly
prejudicial…Unfairness is generally found when and to the extent the evidence
carries with it a risk that the jury will use it for an improper purpose or in
support of an impermissible process of reasoning.”
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.
Focus of the courts should be on the terms of the Act
Although a number of cases have expressed the view that the old law on
“similar fact” remains relevant, for the issues that are covered by s43, the
majority of the Supreme Court stated in Mahomed v R21 that:
“We do not consider a great deal is now to be gained from an examination of
pre-Evidence Act case law. The Act substantially codified that case law and it
is preferable, and consistent with s10(1), to focus firmly on the terms of the
Act; albeit the application or interpretation of a particular provision in the Act
may sometimes benefit from a consideration of the previous common law.”
Conviction for earlier wrongdoing not necessary
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 wellestablished that conduct that is subsequent to the present offending is capable
of being propensity evidence.
