9 Propensity and Veracity

9.1 Introduction/Historical background

Veracity – a propensity to be honest.

Propensity – a trait in your character to act in a particular way.

There are two evidential aspects to character:

• Reputation – as such this aspect cannot be deduced by the accused himself.

• Disposition – an individual’s inherent personality and habitual behaviours.

R v Rowton – majority: you can give evidence about somebodies reputation only; not personal experiences. Cockburn CJ: “evidence is admissible of general reputation of good character, and not of individual opinion”. This seems wrong as it favours rumour and hearsay.

The minority: Erle CJ “opinion must be formed from the personal experience of the witnesses … I am of the opinion that both sources of evidence are admissible, both general rumour prevalent in the neighbourhood … [and] the personal experience of those who have had abundant opportunity of forming an opinion of the character of the accused.”

The minority in Rowton was cited favourably by Gendall J in R v Ravindra: “without the witness being able to refer to his or her own experience … the exercise becomes … illogical.” He went on to say that relying on general reputation was no longer appropriate as it “can be rife in today’s media and gossip driven society.”

Case involved alleged impropriety of a doctor with a female patient. The defence sought to adduce reputation evidence based on 28 witnesses but the Crown argued that we should not look at personal experience, only general reputation. However, Gendall J disagreed, finding that good character evidence of this type should be admissible “because of its relevance to a fact in issue, namely the improbability of guilt.”

9.2 The Principle

Character evidence is held in high regard, in R v Stannard Patteson J said “I cannot in principle make any distinction between evidence of facts, and evidence of character; the latter is equally laid before the jury as the former, as being relevant” to the fact in issue.

Two general purposes:

1. an accused may call evidence of good character to show that it was not likely that he or she committed the offence; Cross refers to as the propensity limb.

2. Good character evidence supports the credibility of an accused; Cross calls the credibility limb.

Gurusinghe v MCNZ – an appeal from a decision of the medical council of NZ by a doctor who had been found of guilty of disgraceful conduct, his name was taken off the medical register and he was ordered to pay $20000 costs. Appeal based on incompetence of G’s legal representatives to call character witnesses.

HELD: admission of character evidence has historically only been permitted where:

• Jury otherwise in doubt, criticised that its effect is therefore nil if not called because the accused gets the benefit of the doubt.

• Character evidence generally irrelevant but admitted as a gesture of humanity. This seems to be going too far; it is giving too much weight to a minor non-epistemic (policy) reason.

Clearly Stannard and Gurusinghe are 2 extremes. We tend towards the Stannard end of the spectrum.

9.3 Veracity/truthfulness

This is a subset of propensity relating to a person’s truthfulness.

Veracity: S 37(5) – “… the disposition of a person to refrain from lying, whether generally or in the proceedings.”

A DISPOSITION FROM ONE LIE? – if it is a disposition there are extra requirements in s 37. If not then you are merely looking at reliability.

R v Tepu - A rape trial where the accused changed his story from denial to consensual sex when supermarket surveillance disproved his alibi that he had not been with the victim on the night in question.

Commenting on s 37(5) it was held that “disposition in this context means a natural tendency or inclination to act in a particular way … An allegation that a defendant lied in a statement to the police does not, of itself, involve an allegation that he has a disposition to lie.” Suggests that one lie is not enough to show a disposition to lie – it would be difficult to show a disposition from one lie but may not be impossible. This highlights the importance of making clear whether you are trying to show a disposition to lie, or merely that D lied on a particular occasion and is therefore unreliable.

R v Biddle – a judge directed the jury to consider: “was she a sturdy soul who was here to tell the truth or was her position in these matters such that you cannot rely on what she’s got to say?”

Despite the finding that the jury would not have been under a false impression of what they had to do, the NZCA noted “it is unfortunate that the judge made the comment (above) … taken alone, the comment confused the concepts of credibility[/veracity] and reliability.”

If you are merely looking at reliability then you just need to comply with s 7 and s 8.

If you are considering veracity, you must satisfy s 37.

SUBSTANTIAL HELPFULLNESS

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.

3) In deciding, for the purposes of subsection (1) (substantially helpful test), 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): (suggests one example may support a lack of veracity)

(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.

EXAMPLES OF SUBSTANTIALLY UN/HELPFUL VERACITY:

R v R - appeal from sexual offence conviction....

Buy the full version of these notes or essay plans and more in our LAWS 307 Law of Evidence Notes.