Chapter 6

Veracity and
propensity evidence

Development of the veracity and propensity provisions
in the Evidence Code and the Act

• prior convictions;
• reputation;
• previous statements;
• physical or mental disorder;
• demeanour;
• bias; and
• corroboration.

Evidence of veracity

• the rule prohibiting a party from bolstering the credibility of a witness;
• the rule prohibiting a party from impeaching its own witness; and
• the collateral issues rule.

At common law a party cannot bolster the truthfulness of a witness – except in a tacit fashion, such as by way of introductory questions – unless that witness’s truthfulness has first been attacked. This is so even if a party anticipates an attack on that witness by another party. However, a party may rebut an attack of a witness’s truthfulness by calling another witness to affirm the first witness’s truthfulness. … Under the current law a witness whose truthfulness has been attacked in cross-examination may also be rehabilitated in re-examination, but it is uncertain what kind of evidence can be offered to do so. For instance, it is debatable whether a party can offer evidence of general good character to rehabilitate the witness.

… a party cannot impeach the credit of its own witness, although it can call other evidence to contradict its own witness. In New Zealand this is reflected in s 9 of the Evidence Act 1908. … This section applies to both hostile and unfavourable witnesses, in both criminal and civil proceedings. Its prohibition of “general evidence of bad character” presumably includes evidence of such matters as the witness’s convictions and reputation for veracity.

If the witness proves hostile, he or she may be cross-examined by the party calling the witness, but not … about bad character, although cross-examination about possible bias is probably permissible. Cross-examination may also extend to prior inconsistent statements of the hostile witness. In New Zealand this right is explicitly recognised in s 10 of the Evidence Act 1908. …

… [applied] when cross-examination is directed to a matter which is not a fact in issue. It treats a witness’s answers as final and does not permit evidence which is intended to contradict them. Commonly the cross-examination is directed to credibility, whether relating to error or to truthfulness.

Collateral issues do, however, vary in their degree of relevance. As a consequence, a number of exceptions to the collateral issues rule, have become established. They relate to questions designed to show:

• that the witness has previous convictions for indictable offences;
• that the witness has previously made a statement inconsistent with his or her present testimony;
• that the witness is biased in favour of or against one of the parties; and
• that the witness suffers from a physical or mental disorder which affects the witness’s credibility.

In all of the above instances, contradictory evidence may be offered.

… the test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.

6.15In short, the previous law can be summarised in the following terms: prosecution evidence of bad character going to a defendant’s veracity was excluded unless the defendant put his or her own character in issue or cast imputations upon a prosecution witness. If either of these things occurred, the courts exercised a discretion to exclude or narrow the bad character evidence if potential prejudice outweighed the probative value for veracity. A defendant had a free hand to disclose his or her own convictions and had wider rights against co-defendants (although still subject to a judicial discretion). In theory, evidence of bad character went only to veracity and not to the defendant’s propensity to commit the offence he or she was charged with. Juries were directed on this latter point.

• “Truthfulness” was replaced with the term “veracity” on the basis that the latter is more appropriate because it places the emphasis upon the intention to tell the truth, whereas “truthfulness” is more readily confused with factual correctness or accuracy;
• Reference to a person’s reputation for being untruthful was deleted as it was considered irrelevant to an assessment of the veracity of evidence;
• Some wording was removed to eliminate any possible impression that the Bill was intended to change the practice of allowing parties to challenge the testimony of their own witnesses by calling other evidence or by cross-examining witnesses called by another party;
• Wording was amended to reinstate the law limiting the opportunity for the prosecution to call evidence as to the defendant’s bad character as the Law Commission’s original formulation was seen as skewed too far in favour of the prosecution;
• A clause giving judges more guidance when determining whether to allow the prosecution to offer evidence about a defendant’s veracity was added (this clause incorporated five factors set out in the Law Commission’s commentary to its proposed Evidence Code); and
• Amendments were made to allow a defendant in a criminal proceeding to offer veracity evidence about a co-defendant only with the permission of the judge to ensure a proper balance between the respective interests of co-defendants.

6.21As enacted, s 37 of the Act provides:

37 Veracity rules

Propensity evidence

6.22Prior to the Act, the general rule was that evidence of propensity to offend was not admissible on the basis that such evidence is unduly prejudicial and therefore contrary to a fair trial. However, despite this basic principle of non-admissibility, exceptions developed. These recognised the inherent potential for prejudice but allowed propensity evidence to be admitted. The most significant of these exceptions was the so-called “similar fact” exception.

In spite of the New Zealand Court of Appeal’s view that the law is settled, the admission or exclusion of similar fact evidence is often the subject of litigation, and is frequently taken to appeal. This reflects the significance attached to such evidence by both prosecution and defence. As the common law now stands, the admission of similar fact evidence is based on the judge’s assessment of the balance between the probative value and the prejudicial effect of the evidence. But each case presents unique factors, and the imprecise nature of the “test” applied in considering admission means that it can be difficult for counsel to assess in advance whether the evidence will be admitted.

Indeed, there is some doubt about the meaningfulness of the common law test.

Courts have always been – and in the Commission’s view rightly – cautious about admitting propensity evidence about the defendant. The concern is that the jury might make unwarranted and dangerous assumptions along the lines of “once a thief, always a thief.” The Law Commission has, for the most part, codified the common law on propensity evidence (both “bad character” and “similar fact” evidence). The proposed rules also clarify certain aspects of the common law. …

40 Propensity rule

41 Propensity evidence about defendants

42 Propensity evidence about co-defendants

43 Propensity evidence offered by prosecution about defendants