Veracity and propensity PDF

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Veracity and Propensity class notes...

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Veracity and propensity: the dividing line Assessments of truthfulness?  What information do we rely on when deciding whether to believe someone?  Is there any info we should rely on (aside from evidence of the relevant facts) when deciding whether someone is guilty of a crime? Identification of the governing provision  Decision relates to relevance and purpose  Section 40(1) definition of propensity  Section 37(5) amended definition of veracity (and s4: “unless context otherwise requires”)  Section 40(4) reference to division between veracity and propensity  Section 7 and 8 govern what is outside either rule (but other rules may also apply – opinion, hearsay, PCS etc)  “disposition of a person to refrain from lying” – definition of veracity. (something about that persons propensity to be honest) Outside the veracity rule  Evidence (or questions) that challenges the accuracy and reliability of a witness evidence not their general veracity “probative credibility” cf “moral credibility” (O’Hagan; hannigan “reliability and veracity are distinctly different concepts” at [34]; pou at [42]; katipa at [8].  Hannigan – reliability and veracity are distinctly different  Evidence being offered to prove the truth of its contents (Davidson)  What about the truthfulness of their testimony? Hiriaki; taiatini (s7) RJ holdings v Mccullagh; katipa (“habitually untruthful”) O’Hagan  Case early on under act Mr O’Hagan charged with assault of step father hitting with baseball bat  Evidence offered about him talking about previous convictions which were for student offending, stealing a stop sign – nothing of the nature of nature of serious violence  Conviction he did not expose was exposing himself in a public space  Prosecution wanted to offer that evidence in cross examination following his claims about the limits of his damage  Question then became well is that admissible for the crown to offer this evidence of this undisclosed conviction  What would the relevance of this in this context? – D not truthful, someone who tells lies generally (no) in which case the argument would be this is just about whether we believe him not when he is testifying, accuracy, reliability and truthfulness. (issue under s7 and 8 and outside the veracity rule) Things not seen as veracity evidence  (mere) denial of offending  Lack of any previous convictions (Wi)  Setting up a false alibi  Challenges to the witnesses version of events: “exclusionary elements of the veracity rules do not operate so as to exclude evidence which is admissible as to the facts in issue” hannigan at [138] (see also [59]).  An allegation that a complainant has a motive to lie  Omitting information about e previous conviction – O’Hagan Meaning of veracity in the act  Section 37(5)

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Section 16 – reliability inquiry Section 94 and definition of hostile in s 4 Section 35 – challenge to accuracy or veracity

Outside the propensity  Section 40 definition  Very wide definition  “background” or “narrative” evidence: R v R; Gooch cf Mahomed  Mahomed – death of a young child and her parents charged with murder, unclear about which of the parents was guilty. Piece of evidence the crown wanted to offer in order to show the parents behaviour towards the child involved the van incident. She had been locked inside a van outside a shopping complex in Auckland on a warm day and was very distressed and crying and passers-by involved security guards from shopping complex and when they arrived, mr Mohamed arrived and brushed them off and said there was nothing wrong with her and drove off. General lack of concern towards the young child as part of establishing it was them who had killed her. Because it wasn’t physical abuse it was neglect it became important for the SC to think about whether this fell within the definition of propensity. Majority of the SC agreed that this evidence fell within the definition of propensity evidence.  But the jury might be told different things about it when they come to use that evidence.  Evidence offered for another (non-propensity) purpose? Nand; pegler; perkins; R v MS  Not probative of a relevant propensity (Roberts)  Directions about propensity evidence A non-propensity purpose?  “relationship propensity evidence”  Relevant to credibility of the complainant, or something else of consequence to the proceeding (but irrelevant to the alleged offending) – hiriaki?  Propensity of the defendant to be (in)accurate  Inquiries in s43(3) difficult to apple – may be different behaviour from current alleged offending Identification of relevant rule: DS6 Examples: Michael Jamison case Sex with an underage (16) - propensity (tendency to have sex with girls under the age of 16) ACC fraud 1990s – shows he is being untruthful (19902 would go to admissibility – the fact that it was so long ago) veracity – these kinds of offending are the kinds of things that show someone’s general propensity to be dishonest out there in the world. Veracity evidence relevant when he makes a pre-trial statement that is admitted or when giving evidence (witness). Using a document1. D is charged with the sexual violation of his young stepdaughters. D calls an expert (E) to give evidence about the absence of physical evidence of rape. P wishes to cross-examine E about E’s membership of a professional body being rescinded some years previously and the fact that a close relative was convicted of sexual offending.  Rescinding of the membership – might be offered because might say something about their quality as a expert if they are no longer officiated with the people in the relevant area, e.g. an expert who might not be an expert (propensity -you should be careful of cautious about what they are telling you because they aren’t actually a proper expert – not veracity because not saying this is an expert who’s a liar, just saying to be cautious they might not be being very accurate, reliable and trust worthy – propensity to be accurate, what you’re really getting at is this is going to help assess the quality of the evidence in terms of its weight so it’s just section 7 and 8).

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Sexual offending – might want to offer this as evidence, have a particular position about offending because they have a relative who has done it before. Be careful about their quality of evidence because their position on sexual offending might be a bit different. Be careful about the weight of their evidence

Discussion sheet in class 2. purpose of the crown offering this evidence is about challenging believing his testimony because he actually wasn’t there half the time the offending could have taken place. Therefore his evidence is not evidence to say the person is a liar but the point is he might not have witnessed it because there was big chunks of time that he was not there. PROPENSITY (about the quality of the evidence) – something about the accuracy of the testimony. Propensity evidence offered for a non-propensity purpose. 3. one of the issues was who was it that dealt the fatal blow to the person who died. Purpose for the prosecution offering this evidence is that: to prove he has a propensity for violence and an aggressive thereof reis more likely to have dealt the fatal blow. PROPENSITY 4 D has been charged with indecent assault and unlawful sexual connection. His defence is that he believed C consented to the sexual activity. The prosecution wish to offer evidence that he had a number of extramarital affairs while with his first wife. Affairs involving a lot of lying so about accuracy and probative credibility or someone who is out there in the world and pretty dishonest – VERACITY. Dishonest person so can’t trust anything he says. 7 D has been charged with sexual offending against C, who has some intellectual impairment. The defence is reasonable belief in consent, because D says C initiated the contact. C says it was not consensual. C’s mother testifies during evidence in chief that “C would never lie – everything is black and white to her”. C’s boyfriend testifies that “C would never initiate sexual conduct – she never does with me.” Both are Crown witnesses. VERACITY propensity not to lie which is veracity. – to first example by mother. Boyfriend – Propensity, she behaves like this in a particular way – also going to support her version of events but particular rule that applies to this kind of evidence s44 propensity rules – how someone behaves and exercised their sexuality as a form of propensity evidence. Veracity: scheme of legislation •

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Admissibility standard: substantial helpfulness – s 37(3) gives guidance (not exclusive) (applies for purpose of hearsay rule also) in order for us to use court time in determining something that is collateral to the major issues at trail it really needs to have quite strong probative value. Sections 38 and 39 – Additional rules regarding evidence of defendant’s veracity when you are looking at veracity to assess the admissibility of hearsay

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Some guidance from s 37(3) but note inconsistencies with definition of veracity subsection 3 talks about how the judge may decide if something is substantially helpful (the veracity evidence) Heightened relevance test, given a peripheral (collateral) inquiry – note also s 8 about needlessly prolonging proceedings Note R v Chase [2016] NZHC 2665 at [44] and R v Katipa [2017] NZHC 2169 at [13] ff Chase – look at paragraph 44 case of quite distressing domestic and sexual violence over a long period of time Section 38(1) evidence of defendant’s veracity provision is a bit contentious at the moment (1) provides a defendant in a criminal proceeding may offer evidence about their veracity presuming that they tell the truth and it has to be evidence that is substantially helpful. Judge has to give

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permission and one of these two triggers: defendant has given oral evidence in court or challenged veracity of prosecution witness by reference to matters other than the facts in issue. Section 38(2) threshold: amendment “in court” (Impact on directions? Can defendants still offer veracity evidence about themselves if do not testify?) Legislative history: Recommendation 13 of Report 127 (Law Commission); Issues Paper reconsideration

Putting it together: scenario extracts • Stealing from neighbour: “I had always heard that Jane was dishonest but I’d never believed it” claim that jane stole form her, and idea that jane has a reputation for being dishonest – VERACITY dishonest all over reputation for being dishonest • Stealing and not giving money to the school – propensity to steal VERACITY EVIDENCE • Unless she can back it up its just rumours and therefore unhelpful. Reputation evidence is normal seen as of being very little value. • Jane’s explanation: Forgot about it; behaving badly; gave it to the school when asked having other information part of the issue is how much time does the court need to unpack all this and fairly put the info in front of the jury – look it’s really not worth it, either by saying not substantially helpful or doesn’t get us very far and make proper undertakings to figure out what happened here would take more time than actually helpful and useful in the trial • D’s convictions: ACC fraud and using a document (20 years old) Michael Jamison case. Veracity evidence. Has to be substantially helpful, and has to testify is Michael going to be a witness? Therefore his veracity is an issue if he’s not then too bad the prosecution can’t offer the evidence about his veracity because his veracity is not an issue. • 2: defendant has to give evidence about their own veracity of challenge the veracity of the prosecution witness • D’s explanation: Accounting oversight; advised to plead guilty; no penalty at the time (sentenced if called upon) • Propensity is A QUESTION ABOUT PARTICLAR FACTS Dillinger has been charged with multiple rapes of his former partner, Cindy. Dillinger denies the offending, saying it was all consensual. When questioned by police (pre-trial) he said that Cindy made it all up in order to get custody of their son. At trial, Dillinger (through counsel) seeks to cross-examine Cindy with reference to her convictions for stealing from her employer (two different ones on different occasions). During the voir dire, her explanation for the offending is that she had no money as anything she earned was confiscated by Dillinger. She has since repaid what she took. 1 The Crown want to offer evidence of the fact that Cindy told her mother after the first incident of rape. (Cindy, however, remained in the relationship for a number of years after this occurred.) Is this permissible and if so, when? VERACITY 2 Should the cross-examination of Cindy be permitted? Would there be any consequences for Dillinger following such cross-examination? Purpose of the evidence is to prove that she is dishonest and lie – veracity evidence, 1. EVIDENCE/QUESTION 2. BY – D 3. PURPOSE 4. RELEVANCE

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yes it is relevant her fraudulent behaviour in the past, therefore it is likely to carry on and assess the mere relevance threshold

5. RULE  veracity rule s37 need to determine admissibility, only admissible if its substantially helpful to assess that persons veracity - s37(3)(b) person has been convicted of one or more offences that recognised propensity or lack of veracity – stealing is that thing. However she has an explanation – money explanation. Does this make a difference in terms of substantial helpfulness – do we need her explanation? How much time is this going to take? How much of this information is really going to be significant at trial? 

What would be the consequence for Dillinger if he was permitted for cross-examining the door could be opened for the crown to offer evidence about his veracity: Challenging the veracity of a defendant – s38 prosecution to offer evidence about the defendants veracity. And the defendant would have to be a witness and testify.

6. APPLICATION/S8  in terms of needlessly prolonging decision and Dillinger’s veracity/ directions – jury told that evidence could only be used to establish veracity and not his guilt propensity: scheme of legislation    

section 40(1) – definition section 40(2) – scheme section 41 and 42 – propensity evidence about defendants section 43 – prosecution offering PE about defendants

Section 41 – defendant offering propensity evidence (mostly expect that to be good propensity evidence, but also could not be) subject only to section 7 and 8.  wi v r – I have no previous convictions  gharbal v r section 41(2) and (3) – opening of floodgates? – can then offering propensity evidence about the defendant by the prosecution in response to defendants evidence (again subject only to s7 and 8)  “about himself or herself” Section 42 – defendant offering propensity evidence about co-defendant (subject only to section 7 and 8) Section 43  Prosecution offering propensity evidence about defendant

Propensity evidence offered by prosecution about defendants (1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. (2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.

(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following: (a) the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred: (b) the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried: (c)

the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

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(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility: (f) the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

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Have to determine what is the issue in dispute (sub section 2) Identify purpose/issue = s43(2) freeman Consider probative value of PE in relation to that issue = s43(3): work through the factors Section 43(4) factors and balancing = s 43(1) Difference between s 43 and s8 Propensity direction: coincidence vs background Section 9 and s49: modes of offering morton

S8 go to at end of all admissibility decisions with the exception of s43.  S43 in order for it to be admissible the probative value has to outweigh the prejudicial effect on the defendant.  Whereas in s8 – the focus is slightly different because it is on the prejudicial effect on the proceeding as oppose to on the defendant. The judge must exclude if its probative value is outweigh by the risk the evidence with have a prejudicial effect on the proceeding so the judge must exclude if the probative value is outweighed by the prejudicial effect  If both probative value and prejudicial effect are equal then that would be admissible under s8 but inadmissible under s43 – s43 is a higher standard.  If met under s43 then s8 has very little work to do. Application: Scenario – conviction for sex with girl under the age of 16 (when D was 21): identify issue in dispute (relevance/purpose/define the ‘propensity’ or disposition); discuss probative value (S43(3)) and prejudicial effect(S43(4) and balance (s43)(1)) and conclude (s8?) and direction. LAWS 307 & CRJU 308 Principles of Evidence DS7: Evidence of past conduct: 27 September 2018

[8] The Crown wishes to adduce evidence of alleged past conduct by Mr Winders that the Crown submits “demonstrates an apparent tendency on his part to react disproportionately and

violently to perceived slights through the use of a firearm and more particularly by shooting at or near the apparent provocateur in circumstances that could well prove to be fatal”. Disposition to shoot at people in a relatively trivial context but in situations that might prove to be fatal [10] The first of these occurred in January 2009 when a Mr Ford and three teenage boys were lawfully pig hunting one morning on property adjoining that occupied by Mr Winders. Mr Ford says two shots were fired at or near him and the boys in quick succession from the direction of the Winders’ property. According to Mr Ford, the first was about three metres over the top of his head and the second struck the track about three metres directly in front of him. Mr Ford and his party fled for cover, believing they were under attack. Mr Ford identified the gun being used to fire the shots as being from a highpowered unsuppressed rifle like a .223 or higher calibre. [11] Mr Winders is alleged to have later bragged to his neighbour about the incident, saying he had chased poachers off the neighbour’s property. [12] The second incident also took place in 2009. A Mr Gleeson and his father were possum shooting between 10.00 pm and 11.00 pm near Mr Winders’ farmhouse. Suddenly, four or five shots were fired behind them and up into a row of pine trees on the public road where they were standing. They took it as a warning to stop and left quickly. Mr Gleeson says that when he subsequently spoke about the incident to Mr Winders, the latter’s response was to say “Oh, I just didn’t know that it was you”. Mr Gleeson says he is sure the shots came from a .22 r...