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Propensity Evidence Notes

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This is an extract of our Propensity Evidence document, which we sell as part of our Evidence Law Notes collection written by the top tier of University Of Otago students.

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Evidence: 22nd April: OUTLINE 4: PROPENSITY EVIDENCE: 'Similar Fact evidence'. Can arise in criminal and civil cases. Generally, the jury is not supposed to know about other disreputable acts other than the charge before the court. Generally, when A is charged with burglary, 20 previous burglaries are not usually admissable. But if the previous offending is 'similar', it is admissable. The CA accepted the HC test for propensity evidence ina criminal context, now s43(1). It's admissable if the evidence has probative value to the crime in dispute which outweighs the risk of prejudice. S43(1) the focus of the test R v Healy:
- One indictment, various counts, but one trial
- The defence wanted two different trials, two different juries (so one jury wouldn't hear both sexual abuse complaints)
- Will the evidence relating to one rape be admitted as propensity evidence? If so, one trial is okay. Held one trial was okay. Focus on the wording of the Act. It's an illustration of one of the many ways propensity evidence can be raised. HC Australia ruled - If the issue in a sexual trial is "did the woman consent", propensity evidence of nonconsensual sex with another woman isn't relevant. Our courts disagreed. What's the need for s43(1) if you have s8? If under s43(1), and the probative value and the prejudicial effect are equal (one doesn't outweigh the other), it would be inadmissable. S43(1) is concerned about a prejudice on the defendant, s8 is concerned about proceedings. s40(1)(a) definition: Tends to show a person's state of mind (propensity). Covers actions and/or states of mind e.g. maybe the accused hates women. Circumstances - e.g. possession of porn/drugs. (b) One of the elements of the offence. R v Ryan:
- Police witness used a nickname for the accused, and said the nickname that the accused used for a cop Shows that the accused has been involved with the police before. Court was unhappy with this. R v Royal:
- Bank robbery video tape case Cop identifying the accused - involved with police before.

27th April: R v Thomas:

- Good example of what is still lacking in the act of weighing prejudicial effect and probative value.
- Party in Wanaka, Mr Thomas a neighbour, comes uninvited.
- Kicked out, then a molotov cocktail is thrown into the house
- When they searched his house they found old and new nazi material, and a swastika tattoo on his arm. Did accept that Mr Thomas' antisemitic beliefs were highly probative and exceptionally prejudicial. Before the Act it was said quite often that admission was a matter of discretion. Don't give a concrete conclusion about whether it's admissable or not. 'Legitimate' and 'illegitimate' prejudice - Evidence that validly will help convict vs weighing up the prejudicial effect. R v Watson:
- Before the murder he said 'I hate women', and 'I want to kill people'. Let in without much conflict because it had very high probative value. R v Hurring:
- Possessing articles
- Assaulting a 9 year old girl
- Found in his house a scrap book with magazine pictures with young girls and adult pornography, and obscenities. CA said not admissable. s43(3)(f) Extent of the unusualness of the evidence and of the offence. On this, it looks pretty probative. s43(3)(b) Similarity of the offence and the evidence. Court said not very similar. He got lucky, high prejudicial effect. R v McFarland:
- Gang affiliation Sometimes inevitable that it will be included. Gang affiliation does amount to propensity evidence. Tendency for CA to not bother with s43(3) analysis, say just need to go to s7 and s8. Not that much difference between s8(1) and s43(1). R v R:
- Sexual abuse of particular evidence
- Physical abuse in the years/months before the sexual abuse, admissable?
Court said admissability of physical abuse, look at s8. Pretty clearly propensity evidence, background of the relationship, "parts of the narrative", but not similar fact evidence. Highly probative, it goes in. Accused also abused kid's mother and brother - in this case they did turn to s43(1), and did an analysis, let it in. R v Walker:
- Took ex girlfriend and kid on an 'unwilling drive'.
- Kidnapping, threatening to kill (guilty), possessing knife (acquitted). Couldn't agree on kidnapping, new jury. Crown wants to put in evidence for threat to kill. Propensity evidence. Court doesn't even really mention s43, turned to s49 (conviction as evidence in later proceedings is admissable, unless excluded by any other sections - e.g. s8.). Too prejudicial? Court said part of the res gestii, let it in. s8(2) Weighing up prejudicial effect, Court is to take into account the right of the defendant to offer a defence. Mahoney thinks it's strange that they didn't even look at s43.

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