Contents

Chapter 6
Veracity and
propensity evidence

Introduction

6.1 As the fact-finding process of a courtroom trial is largely based on the giving of oral testimony by witnesses, evidence of character and evidence of credibility can be of critical importance. In cases where there is little or no “real evidence”, the fact-finder may have to decide a case based on which witnesses and which version of events they believe. While evidence of credibility and character can be helpful in assisting a fact-finder to reach this decision, such evidence can also have little or no relevance, or be unfairly prejudicial. As with all evidence law, the law relating to credibility and character evidence seeks to strike an appropriate balance between providing the fact-finder with relevant information that is of assistance to it, while excluding such evidence if it is unfairly prejudicial or of only marginal relevance. It is vital that the rules that provide the framework within which the fact finder will assess credibility are “rational, consistent and fair”.374

6.2The common law rules law relating to evidence of character and evidence of credibility encompassed what has come to be known in the Act as evidence of “veracity” and “propensity evidence”.

6.3Veracity is defined in the Act to mean “the disposition of a person to refrain from lying, whether generally or in the proceeding”.375 The Act defines propensity evidence to mean “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”. Evidence of an act or omission that is one of the elements of the offence for which the person is being tried or the cause of action in the proceeding are specifically excluded from the definition of propensity evidence.376

6.4Put simply, veracity evidence is generally concerned with whether a person is honestly recounting their version of events and is not being deliberately untruthful. Propensity evidence is concerned with whether a particular person has a tendency to act in a particular way or have a particular state of mind. Evidence of past behaviour may be relevant in determining whether the person behaved in the same way in the instant case.

6.5Veracity evidence and propensity evidence are distinct concepts, although at times there may be some overlap. Where this occurs, the Act is clear that the veracity rules take precedence if the evidence is being used solely or mainly for veracity purposes.377

6.6These categories of evidence have given rise to difficulty in practice both prior to and subsequent to the implementation of the Evidence Act. The relevant parts of this vexed history are set out in this chapter, together with the issues that have been raised for consideration in the context of this review. Those issues include the scope of the veracity evidence sections of the Act and some fine tuning matters related to those provisions. In relation to propensity evidence, the key issues are the balancing test to be carried out and directions to be given to a jury about propensity evidence.

374Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997) at 21.
375Evidence Act 2006, s 37(5).
376Evidence Act 2006, s 40(1).
377Evidence Act 2006, s 40(4).