Propensity evidence: issues
6.112 Since the Law Commission’s 2010 advice to the Minister, the Supreme Court decision in Mahomed v R has provided important guidance on two issues relating to propensity evidence:
- whether evidence falls within the definition of “propensity evidence” in s 40(1) of the Act (in other words, the decision squarely tackles the issue raised by the Law Commission in its 2010 advice about “side-stepping” of the propensity provisions); and
- if evidence is propensity evidence, whether a jury direction is required, and if so, in what terms.
6.113 In terms of the first of these issues, both the majority and minority took a broad approach to s 40(1) and were clear that its language requires a broad approach to determining what is propensity evidence. In the words of the minority, a “broad and literal approach” should be taken. Accordingly, the Court unanimously held that evidence that had been categorised by the Court of Appeal as part of the narrative, did fall squarely with s 40(1).
6.114The key significance of categorising the evidence as propensity rather than part of the narrative or background, is that it must then be subjected to the analysis required by s 43 rather than falling to be considered under the general test for exclusion in s 8. Despite recognising the difference in the persuasive burden between the two, both the majority and minority were of the view that it mattered little whether s 8 or s 43 was applied. The majority described s 8 as dealing with a similar issue as s 43(3) “in general and materially similar terms”, while the minority said “there is little or no practical difference between the s 8 and s 43 balancing tests.”
6.115In terms of the second key issue dealt with in Mahomed, both the majority and minority recognised that directions to the jury may address potential prejudice to the defendant arising from propensity evidence. The Court of Appeal in the earlier decision of R v Stewart had adopted a fairly detailed approach to the type of direction to be given to a jury in a case involving propensity evidence.
6.116 While the majority in Mahomed had nothing further to say on the issue of jury directions, the minority expressed some dissatisfaction with the Stewart approach. In particular, they did not consider that a direction is necessary in every case where propensity evidence is led, rather, it is only required where the propensity evidence is “led primarily in reliance on coincidence or probability reasoning”. As one commentator has noted, this distinction tends to mirror that previously made by reference to the governing admissibility rule (and which the Supreme Court overruled in this very case). Accordingly, when discussing why a propensity direction was not needed in relation to particular evidence, the minority made arguments similar to those employed by the Court of Appeal in earlier cases where it held that evidence was not propensity evidence caught by ss 40–43 of the Act. The minority were of the view that there is “no scope for a one-size-fits-all standard propensity direction” and that any direction must be tailored to the circumstances of the case.
6.117While the majority declined to address the issue when jury directions are required, preferring to leave it for a future case where consideration of the issue was necessary, in a footnote, it did agree with the reservations expressed by William Young J for the minority about “the utility and content of the directions suggested in Stewart”.
6.118In summary, while the Court was unanimous in its view that the prescriptive approach in Stewart is unhelpful, there was no agreement as to when a propensity direction ought to be given and what form it should take. However, it is worth noting that more recently in Fenemor v R, Tipping J for the whole Court stated that “in the substantial majority of cases it will be necessary for the judge to tell the jury how the propensity evidence should and should not be used”.
6.119The following discussion considers issues raised by submitters in relation to the propensity provisions and also outstanding issues that were highlighted by the Law Commission in its 2008 report and 2010 advice to the Minister.
Weighing of probative value against prejudicial effect
6.120As noted above, both the majority and the minority in the Supreme Court in Mahomed held that there is little difference between the tests in ss 8(1)(a) and 43(1), which, (if correct) begs the question of whether there is any point in retaining both.
6.121On the face of it, there is a subtle but real difference between the two tests. Section 8(1) requires exclusion where the probative value of the evidence is outweighed by the risk of prejudicial effect, while s 43(1) permits admission of propensity evidence only where the probative value outweighs the risk of prejudicial effect. As the minority in Mahomed note, “if probative value and the risk of unfair prejudice were equal, exclusion would only be required by s 43”. While recognising this apparent difference, neither judgment in Mahomed considered it significant in practice.
6.122One of the leading texts on the Act had previously expressed the view that because s 43 is concerned with prejudicial effect on the defendant (as opposed to the proceeding), it may lead to exclusion of some evidence that would not be excluded under s 8, given the wider spectrum of interests accommodated by the latter section.
6.123 One of the authors of that text has more recently repeated the view that there is significance in the different ways that the ss 8 and 43 admissibility tests are cast. Richard Mahoney has noted that while s 8(1)(a) requires the court to take account of the prosecution’s interests, that consideration has no part to play under the s 43 analysis. He has also described the s 43 test as a “more detailed calculation of admissibility”.
6.124With respect to s 8 referring to prejudice to the proceedings (and thereby requiring consideration of the prosecution’s interests) and s 43 referring only to prejudice to the defendant, the minority in Mahomed explained that this is because the only relevant prejudicial effect that can logically need to be considered in relation to propensity evidence about the defendant is that on the defendant.
6.125As Richard Mahoney and Elisabeth McDonald have both noted, there is a more stringent approach taken to what is considered probative under s 43 than more generally under the Act. In particular, Elisabeth McDonald notes that the majority’s view that there is a need to identify “with some specificity the ‘particular’ state of mind the propensity evidence tends to show and relate that to the states of mind required for each offence”. This insistence on precise articulation of the particular way in which an item of propensity evidence is sufficiently probative to outweigh the unfairly prejudicial effect inherent in this class of evidence is seen by Richard Mahoney as a recognition of the particular risks of prejudice arising from propensity evidence (something, which in his view, does not appear to be an ongoing concern for a significant sector of the judiciary). It also recognises that the probative value of propensity evidence cannot be assessed in the abstract.
6.126The view of the minority in Mahomed that there is “little or no practical difference” between the ss 8 and 43 tests, is probably true in terms of the result that would be achieved through applying the respective admissibility tests in most cases. As the Court in R v L said, “in most cases involving evidence of propensity the analysis under s 43 will subsume the s 8(2) considerations.”
6.127The difference between the probative value of the evidence being outweighed by the risk of prejudicial effect, as opposed to the probative value outweighing the risk of prejudicial effect, is indeed a very subtle one unlikely to bring about different results in the vast majority of cases. However, there remains the possibility of a case arising where the probative value and the risk of unfair prejudice are judged equal. In such a case s 43 would require exclusion while s 8 would render the same evidence admissible. While unlikely to arise often, it is still an actual difference that might lead to distinct outcomes.
6.128As noted by the minority in Mahomed, the specific test laid down by s 43 can be said to be a “reminder of the need for caution” that has historically been required in relation to propensity evidence, and which arguably remains. The factors in subs (2) and (3) provide specific guidance as to how this caution should be exercised. Further, this reminder of the particular need for caution in relation to propensity evidence is arguably a useful reminder to the court of the need to consider whether a specific direction to the jury is required.
6.129In this context, it should be noted that the Crown Law Office in its submission was critical of the majority in Mahomed for requiring this degree of specificity. In particular, Crown Law’s concern is that the approach of the majority has led to courts in other cases searching for a “signature” or “striking similarity”, concepts which were especially problematic for the common law in the past. Crown Law is of the view that while there is little difference between the tests in ss 8 and 43, the application of the various factors in s 43 to a broad range of evidence, some of which was previously governed by other principles (such as the narrative principle), is potentially awkward. It considers that the propensity provisions should be amended so that it is clear that all categories of this evidence, including narrative evidence, evidence of motive, relationship evidence or orthodox propensity evidence, are admissible according to one criterion only, that being when the probative value of the evidence outweighs its prejudicial effect.
6.130There is, however, nothing in the text of Mahomed which appears to suggest the adoption of concepts such as “signature” or “striking similarity”. Rather, the focus of the majority is on ensuring that the relevance of propensity evidence is stated with sufficient particularity to guard against improper use of such evidence. That is rightly so.
6.131Ultimately, the judgements to be made about probative value and unfair prejudice in this area are difficult ones. As the Court of Appeal said in R v Taunoa:
It says much about the difficulty of applying the law in this area that a very experienced trial judge could so firmly be of the view that the probative value of [the] evidence decisively outweighed its prejudicial effect while we are of an equally clear view that [the] evidence is inadmissible on the ground that its probative value is outweighed by the inevitable prejudice which would inure to Mr Taunoa if the evidence of his 1991 offending were presented to the jury.
6.132It is not clear that further legislative amendment to the propensity provisions in the Act would make the exercise of such value judgements any easier and indeed may lead to further confusion about where the balance lies.
6.133In summary, while the distinction in practice between the s 8 and s 43 tests may be subtle and have little impact in most cases, there remains at least the theoretical possibility of a case or cases where it would lead to a different outcome in terms of admissibility. Having a separate and more detailed test for admissibility of propensity evidence also arguably serves as a valuable reminder about the particular risks of this type of evidence. Section 43 also provides guidance as to the specific factors to be considered in assessing probative value and prejudice and reminds the judge of the need to assess these in the context of the case at hand. While these are not necessarily relevant in all cases, it is useful for them to be spelled out. Nor does this preclude consideration of other factors that might be relevant to the balancing exercise in a particular case. Accordingly, we consider the s 43 test should be retained.
An additional tit for tat rule?
6.134 Elisabeth McDonald and Yvette Tinsley, in a recent publication that explores possible improvements to the criminal justice process as it impacts on sexual violence cases, have recommended that:
… the Evidence Act 2006 be amended to allow the prosecution, with the permission of the judge, to offer propensity [evidence] about the defendant in a sexual case if the defendant has offered propensity evidence about the complainant pursuant to s 44.
6.135They note the particular difficulties associated with the admission of propensity evidence in acquaintance rape cases. In particular, the need for the precise issue formulation (discussed in more detail below) has tended to mean that in practice consent and reasonable belief in consent is not regarded as precise enough for the purposes of s 43(2) and evidence of previous non-consensual sexual activity will be seen as evidence of a mere propensity to offend generally and not sufficiently relevant to the issue of whether there was non-consensual activity in relation to a different complainant.
6.136The authors go on to argue that allowing propensity evidence about a defendant who has offered evidence about a complainant’s sexual experience is “a justified response to victim concerns about the fairness of the trial process”. However, the logic of linking the admissibility of a defendant’s past sex offence convictions to the fact that a defendant has been granted leave to question a complainant about her own sexual history has been questioned. If indeed there is a problem with the frequency with which leave to question about sexual history is being granted then that ought to be addressed directly. To permit admission of propensity evidence that is potentially unfairly prejudicial due to a lack of relevance in the circumstances of a particular case (put crudely, a “tit for tat” approach) does not solve the problem in relation to s 44.
6.137In its 2008 report, the Law Commission said it was not prepared to countenance any approach that would give rise to a risk of unfair trials – that should continue to be a governing principle. Accordingly, we do not support this recommendation.
6.138As noted above, the minority in Mahomed took the view that there are problems with the seven stage judicial direction that the Court of Appeal adopted in R v Stewart. While the majority tended to agree that there were issues with it, they preferred to leave the issue for a case where it was necessary to address it. The Crown Law Office has recommended that there be “legislative clarification of the circumstances in which jury direction is required in relation to orthodox propensity evidence, and of the nature of any such direction”.
6.139The utility and effectiveness of directions generally is discussed earlier in this report, with the orthodox position being that juries pay close attention to judicial directions and apply them carefully. The question is whether the circumstances in which they should be applied and the type of direction that is required can or should be prescribed in legislation.
6.140The minority in Mahomed said in relation to the Stewart formulation of judicial direction that:
… there is no scope for a one-size-fits-all standard propensity direction. And although the Court of Appeal in Stewart rightly recognised the need for flexibility and the need to tailor directions to the facts of the particular case, its attempt to provide something of a universal template was overly ambitious. As well, there are some components in the seven-step process which we think are likely to be unhelpful from the point of view of a jury.
6.141There is also research suggesting directions that are tailored to the particular needs and complexities of the individual case are preferable to standard directions. Earlier Law Commission research found that the use of standard directions may be unhelpful as juries may not understand that a direction is standard and think that it has a particular relevance in the context of the case at hand.
6.142Furthermore, legislation does not typically prescribe the content of judicial directions. That is usually a matter of judicial discretion to be exercised in the circumstances of the particular case, having regard to the nature of the issues raised, the evidence that has been adduced and the dynamics of the trial process. As the minority in Mahomed emphasised, the giving of directions is a matter of “common sense”.
6.143A firm holding a Crown Solicitor’s warrant has submitted to us that there is some uncertainty as to how admissible propensity evidence of previous convictions should be adduced. In addition to the propensity provisions, there are two other relevant sections in the Act. Section 49 provides that, absent exceptional circumstances, a previous conviction is conclusive proof that the person committed that offence. Where the fact of a conviction is admissible, s 139 allows evidence of that to be given by way of a certificate of conviction. These sections are considered further at paragraph 9.1.
6.144Propensity evidence is evidence that “tends to show a person’s propensity to act in a particular way or to have a particular state of mind”. As the majority of the Supreme Court held in Mahomed “[i]t is necessary, therefore, that the propensity have some specificity about it”. Offering a conviction certificate as evidence under s 139 will generally be an inadequate method of adducing propensity evidence, as the probative value of the previous conviction will lie in the similarity of the circumstances of the offending with the instant case, not the bare fact of conviction.
6.145Courts have taken different approaches as to how propensity evidence of previous convictions may be admitted. In some cases, the court has directed counsel to seek to agree upon a statement of facts to be admitted under s 9, with recourse to the trial judge if agreement is not reached. Alternatively, the statement of facts from the previous conviction or the sentencing notes are admitted. In some circumstances, the prosecution has called the previous victim or complainant to give evidence of the previous offence. The Court of Appeal has stated:
It will be for the trial Judge to determine the way in which the propensity evidence is to be adduced, taking into account all relevant circumstances … Our view on the admissibility of the evidence in relation to the 2002 incident would likely be different if P were not available to give evidence and it was suggested that her evidence be given in some other way, for example by producing her deposition statement and evidence of the appellant’s conviction for threatening to kill. That could well tip the balance and render the evidence unfairly prejudicial to the appellant.
6.146The Court went on to explain why the failure to call the previous complainant to give evidence could be unfairly prejudicial to the defendant:
The probative value of the evidence of the 2002 incident relies on the features we have identified, or most of them, being established. Some of those features are capable of being disputed or explored with P to highlight differences from the 2000 offending … Accordingly, the defence should be able to explore with P the apparently probative features of the 2002 incident, to establish they exist and to bring out aspects that may be different from the 2000 incident. The defence will be unable to do this if P is not available for cross-examination. Without her giving evidence, there is a risk that unfair prejudice to the appellant will result because the defence will not be in a position to expose any differences and P’s evidence may be given greater weight by the jury than, properly tested, it deserves.
6.147We consider that the current approach, whereby the trial judge retains the flexibility to determine how propensity evidence of previous convictions should be adduced (as assisted by counsel) is appropriate. As highlighted by Batchelor v R, the means by which the evidence is adduced may be relevant to its admissibility. It is therefore not desirable for the Act to unduly prescribe the manner in which propensity evidence of previous convictions should be adduced; what is appropriate in one case may not be appropriate in another. It would be helpful for the party seeking admission of a defendant’s previous conviction under s 43 to specify the manner in which it proposes to adduce the evidence. This will ensure the court is provided with the full picture when it determines the prejudicial effect of the statement. In many cases, parties may be able to agree on a statement under s 9.