Chapter 6
Veracity and
propensity evidence

Law Commission’s 2008 report into prior convictions and allegations

6.28After the Act received Royal assent, but prior to the Act coming into force, the Law Commission received a reference asking it to consider the extent to which a jury in a criminal trial is made aware of prior convictions of a defendant and allegations of similar offending. The Law Commission published an issues paper404 in 2007 and a final report in 2008405 in response. The issue of how to deal with evidence of bad character was also included in the review, but was not its primary focus. The report noted some issues with the provisions (considered in more detail below) but ultimately recommended no amendment to the veracity and propensity provisions in the Act. However, the report proposed that the Law Commission continue to monitor the courts’ interpretation of the veracity and propensity provisions with a view to providing advice to the Government in 2010 as to whether they are operating adequately and as intended.

Evidence of veracity

6.29After examining the issues and analysing the submissions it received, the Law Commission concluded that veracity “is not the major issue of public concern”,406 but did note that:

Propensity evidence

6.30At the time the Law Commission published its issues paper, there was some uncertainty as to how the exclusionary approach in s 43 of the new Act would be interpreted and applied. One possible approach, based on the earlier stated objectives of the Law Commission, would be for the courts to treat s 43 as simply restating the common law approach to similar fact. An alternative was to focus on the statutory language, reading it on its face as a fresh start.407 As it turned out, by the time the Law Commission reported in 2008, the Court of Appeal had answered this question in favour of the latter “fresh start” approach.408 The Law Commission considered this to be acceptable.409
6.31In its issues paper, the Law Commission put forward eight options in relation to propensity evidence:410
1 No change from the present position;
2 “Wait and see”: respond as appropriate after judicial interpretations and working experience has clarified the effects of the new legislation;
3 “Wait and see”: (as in (2) above), but with immediate amendments enabling appropriate determination of circumstances of previous convictions, and confirming that multiple complainants’ similar fact evidence is propensity evidence and is not veracity evidence;
4 Amend section 43 by a declaratory provision that it is not to be interpreted by reference to previous rules as to similar fact evidence, but is to be read as if a code;
5 Amend section 43 (with or without removal of similar fact restrictions) by stating propensity evidence will not be admissible if the risk of unfairly prejudicial effect of the defendant or proceeding “substantially” outweighs probative value;
6 Replace section 43 by provision that propensity evidence will not be admissible if the evidence will prevent a fair trial;
7 Adopt solution 4 above, but in addition create a special class of or classes of offence in which propensity evidence is admissible regardless of risk of unfair prejudice;
8 Repeal section 43 and qualify section 8: allow in all relevant propensity evidence in all trials regardless of risk of unfair prejudice and risk of unfair trials.

6.32By the time of the Law Commission’s 2008 report, option 4 had become redundant in light of the Court of Appeal decision referred to above interpreting section 43 as a “fresh start”.

6.33In that report, the Law Commission was not prepared to countenance any options that involved “acceptance of a heightened risk of unfair trials”.411 The Law Commission took the view, however, that while there are a number of circumstances in which the probative value of previous convictions is very limited, the law prior to the Evidence Act was “too restrictive” and “notoriously difficult to apply in practice”.412

6.34It noted that with the Court of Appeal adopting a fresh start, a more liberal approach, and even expansion in some classes of case, was probable. The Law Commission was not persuaded that there was any inherent difficulty with the statutory test involving a weighing of probative value and prejudicial effect. While there is imprecision in these concepts, any test that did not involve a difficult exercise of judgment would likely result in rigidity and hence injustice.

6.35Finally, the Law Commission concluded that:413

It would nevertheless be premature to reach the conclusion that the current rules do not need to be changed. The Act is very new, and it cannot be said with certainty that a more liberal position will necessarily be adopted or maintained. If there were to be an unexpected retreat back to more restrictive traditional outlooks, some additional legislative guidance might become warranted. Moreover, there are some unresolved difficulties and uncertainties in the current law that the courts may or may not be able to resolve unaided. These include the potential difficulties that arise in the segregation between propensity and veracity. …

The Commission therefore proposes that it should continue to monitor and further assess the operation and impact of the provisions of the Evidence Act 2006 relating to previous convictions, propensity and veracity, and to report back to government by 28 February 2010 whether any amendment to the legislation is required in the light of experience in the intervening period.

404Law Commission The Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character (NZLC IP4, 2007).
405The reference followed public disquiet regarding the non-disclosure to the jury of previous convictions of two former police officers who were tried and acquitted of sexual offending in a high-profile case.
406Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character, above n 388, at 147. The aspects of the 2008 report dealing with propensity evidence are discussed later in this report.
407Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character, above n 388, at 153.
408R v H [2007] NZCA 451.
409Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character, above n 388, at 153.
410At 154-155.
411At 155.
412At 156. In terms of circumstances where prior convictions have low probative value, the Commission gave the example of a defendant facing burglary charges where the prosecution case is purely circumstantial (perhaps involving evidence that the defendant was near the scene of a burglary late at night and gave no satisfactory account of his or her movements). In such a case, the evidential value of the mere fact that the defendant has a prolific record for burglary is “extremely limited” and runs the risk of being misunderstood and given undue weight.
413At 157.