#8441 - Propensity And Veracity - LAWS 307 Law of Evidence

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.”

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.

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. Argued that admission of incredible evidence lead to a miscarriage of justice. D had given evidence of his work history which should have been deemed inadmissible as not substantially helpful. Crown cross-examined with inappropriate allegations e.g. that D had been dishonourably discharged from army and sacked from hospital.

CA held that original evidence should not have been admitted and cross-examination was essentially tit-for-tat, so that there was no miscarriage of justice.

Prior conviction (s37(3)(b)).

R v Russell – prior conviction of indecent assault and indecent exposure were not helpful to show a lack of veracity. The convictions were also 30 years old, highlighting that time can be a factor.

No explicit guidance on what types of convictions are substantially helpful. NZLC said drink driving would not be substantially helpful. Dishonesty/fraud generally are helpful.

R v Kereopa – a witness document from a person with 3 prior convictions for use of a document for pecuniary advantage. Crown admitted that this would be useful in demonstrating a lack of veracity.

Previous inconsistent statement (s37(3)(c)).

R v Speers – a witness added a detail not found in a previous statement. Fisher J held that an inconsistent statement would arise where it would have been expected that a truthful witness would have referred to the detail in the previous statement.

General reputation – a factor for veracity or not?

This is not one of the factors under s37(3). The NZLC said that evidence of general reputation taken from personal experience may be relevant but the Justice and Electoral Reform Committee disagreed and removed it from the Evidence Bill. There is still debate over whether this should be admissible.

R v Kant CA – appeal against conviction for assaulting a young female employee. Appealed on basis that counsel had not called good character evidence or general reputation evidence. Appeal rejected on basis that this would have simply bolstered the truthfulness of the appellant’s account. Further, it was doubted whether such evidence could be found to be ‘substantially helpful’. Nevertheless, seems to leave open possibility of using good character evidence but it will be hard to meet the SH standard.

This seems to be confirmed by the SC in Wi v R when they said that an absence of previous convictions “cannot be said [to be] substantially helpful in assessing the defendant’s veracity … [because] the simple fact that a defendant has no previous convictions cannot sensibly be regarded as having the heightened probative force required by the substantially helpful test.”

General reputation found through lack of prior convictions may be a propensity issue – see below.

GROUNDS UPON WHICH THE PROSECUTION MAY OFFER EVIDENCE ABOUT D’S VERACITY

Was covered by EA 1908, ss5(4)(a) and (b) as interpreted in light of the UK provision under s 1(f) of the Criminal Evidence Act 1898 (UK):

(f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –

1. the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

2. he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or...