What’s in an Issue? The Admissibility
of Propensity Evidence in Acquaintance
Rape Cases
Stephanie Bishop and Elisabeth McDonald*
I. Introduction
The passage of the Evidence Act 2006 (the Act) represented the most
significant overhaul of New Zealand’s evidence laws in approximately one
hundred years. Among the myriad of reforms was the attempt to codify the
notoriously complicated common law rules relating to similar fact evidence.
The term “similar fact”, however, was replaced with the term “propensity
evidence”,1 or more specifically “propensity evidence offered by prosecution
about defendants” (section 43 of the Evidence Act 2006). Despite the change
in terminology, the legislative intent was not to depart from the common law
in any significant way,2 but was intended to clarify and codify the common
law principles relating to “similar fact” evidence.3
The codification, however, has been somewhat controversial. Debate has
focussed on whether the propensity provisions “lowered the bar”, allowing
the admission of evidence that would previously have been excluded.4
Further, immediately following the reforms there was a tendency of the
courts to avoid classifying evidence under the propensity provisions, in much
the same way as there was a noted reluctance to classify evidence as “similar
fact” under the common law rules.5 A recent review undertaken by the Law
Commission, however, has concluded that the provisions overall appear to
be “working”.6
*
1
2
3
4
5
6
Stephanie Bishop is a solicitor at Luke Cunningham & Clere, the Wellington office of the
Crown Solicitor. This work was initially undertaken for her LLM at Victoria University of
Wellington and prepared for this publication in May 2011.
Elisabeth McDonald, Associate Professor of Law at Victoria University of Wellington
Evidence Act 2006, s 40(1).
Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Wellington,
Brookers, 2010) at 187 [Act and Analysis]. The authors refer to the leading authority prereforms of R v Holtz [2003] 1 NZLR 667 (CA).
New Zealand Law Commission Evidence Volume 1: Reform of the Law (NZLC R55 1999) at
[175] [Reform of the Law].
See Christopher Stevenson “Propensity Evidence: What has Changed? Some Preliminary
Questions” (New Zealand Law Society, Criminal Law Symposium, 2008) at 23.
See Richard Mahoney “Evidence” [2008] NZLR 195. See also R v Te Pania [2007] NZCA
429 at [10]-[11]; R v Walker [2007] NZCA 558; R v Broadhurst [2008] NZCA 454; R v
Gooch [2009] NZCA 163; R v R (CA403/2008) [2008] NZCA 432. The approach to the
admissibility of “background” or “narrative” evidence (by applying ss 7 and 8 rather than s
43) has now been questioned by the Supreme Court in Mahomed v R [2011] 3 NZLR 145,
[2011] NZSC 52 at [63]–[67].
Letter from Sir Geoffrey Palmer to Hon Simon Power “Regarding the Evidence Act Review:
Operation of the Veracity and Propensity Provisions” (1 April 2010), on file with the authors.
168
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
169
The Law Commission’s recent examination of section 43 followed their
report in 2008 that concluded that no reform was necessary until the Act had
been in operation for a longer period of time.7 The reason the Commission
had been asked to examine the issue of admissibility of a defendant’s previous
convictions, or bad character, was a result of a series of high profile cases. In
the mid-1980s a number of young women in the Bay of Plenty claimed they
were gang-raped by three police officers. Although complaints were made
at the time, no action was taken until a journalist highlighted the issue in
2004.8 In March 2006, the three men were acquitted of raping one of the
women, Louise Nicholas. Public concern about the case initially centered
on the fact that the jury was not told that two of the defendant had been
convicted of raping another of the young women and were both serving their
sentences in jail for that offence at the time of the trial.9
As the Law Commission has concluded that no reform of section 43 is
currently required, it is timely to consider whether the decision not to admit
the previous convictions in the historical rape allegation case would be the
same under the Evidence Act 2006. In other words, in an acquaintance rape
scenario10 - the most difficult cases in which to get a conviction, and where it
is unlikely that the defendant has relevant prior convictions - would a prior
conviction be admissible to assist the resolution of an issue in the case? The
answer to the first part of this question is that it depends on the issue.
The precursor to the balancing test between probative value and
prejudicial effect in section 43(3) and (4) is the identification of “the issue
in dispute”. Analysis of sexual offending cases in which section 43 has been
applied indicates that, when the issue in dispute is whether the complainant
consented or whether the defendant had reasonable belief in consent, prior
convictions for similar sexual offending will rarely be admitted. Although
such evidence has been admitted in acquaintance rape cases where the issue
is consent, we argue that this is either due to imprecise or inaccurate framing
of the issue or the questionable linking of the evidence to an issue. We argue
that if the issue is incapable of being more precisely framed than that of the
inherently broad issue of consent, then it is difficult for previous convictions
to be admitted.
7
New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions,
Similar Offending and Bad Character (NZLC R103, 2008) at iv [Disclosure to Court].
8 See also L Nicholas and P Kitchin Louise Nicholas: My Story (Random House, Auckland,
2007).
9 NZPA “Police Sex Trial: What the Jury Never Knew” (1 March 2007) New Zealand Herald
<www.nzherald.co.nz>. This article was published a year after the trial in which Louise
Nicholas was the complainant and following a trial involving another complainant (B)
and the same three defendants in February 2007. There were extensive suppression orders
surrounding these trials, which were not lifted until after the conclusion and acquittal of all
defendants: See R v Rickards HC Auckland CRI-2005-063-1122, 1 March 2007. This was
the minute rescinding the suppression order.
10 We have chosen to use the term “acquaintance rape” as acquaintance scenarios mainly involve
this type of offending. It should be noted, however, that such offending could include other
types of sexual violation.
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Our analysis of these cases draws primarily on the Court of Appeal’s
statement in Freeman v R11 as to the importance of defining the issue “as
precisely as possible”.12 If the analysis is correct it will remain difficult for the
prosecution to offer propensity evidence about the defendant in acquaintance
rape cases where the issue is consent in the absence of denial on the part of the
defendant or the addition of another issue in dispute to which the evidence
then becomes relevant. Given that consent or reasonable belief in consent will
be the issue in most cases of this nature, the concern voiced by the public in
2006 may well not have been appropriately addressed by section 43. In order
to reach this conclusion we begin this article by examining the operation of
section 43 and then move on to analysing “acquaintance rape” cases. Our
analysis demonstrates both the importance of proper identification of the
issue in dispute, but also the impact of that identification on admissibility
rulings in such cases.
Our research also indicates that even where the issue is precisely defined,
evidence of a previous conviction or other misconduct will not be admitted
unless it is sufficiently similar to the allegations in the later trial. This reliance
on similarity means it is highly unlikely that in any acquaintance rape cases
where the sole issue is consent or belief in consent will evidence of previous
convictions be admissible. Consequently we recommend that further
research be undertaken to identify and explore possible reform options in
this particular context.
II. Propensity Provisions Under the Act
One objective of the Evidence Act 2006 was to reduce the uncertainty
that existed at common law.13 Indeed, shortly after the Act was passed, the
Court of Appeal in R v Healy14 held that, while it may be necessary in some
circumstances to refer back to the common law, the starting point for an
assessment of propensity evidence is the words of the Act.15 Sections 40
and 43, relating to evidence offered by the prosecution about a defendant,
establish a two-tiered test. First, the evidence must be classified as propensity
evidence.16 Second, the evidence will be considered subject to a balancing
test, largely codifying the fundamental test that existed under the common
law rules, namely; whether the probative value of the evidence outweighs
the risk that the evidence may have an unfairly prejudicial effect on the
defendant.17
11
12
13
14
15
Freeman v R [2010] NZCA 230.
Ibid, at [21].
Healy v R [2007] 3 NZLR 850 (HC) at [54].
R v Healy [2007] 23 CRNZ 923, [2007] NZCA 451.
Ibid, at [46] and [48]. This has been cited and approved of extensively. For example see R
v Beazley [2009] NZCA 283; O v R [2010] NZCA 194; R v Mataira [2008] NZCA 323;
Vuletich v R [2010] NZCA 102 at [24]; R v Edwards [2009] NZCA 82 at [21].
16 Evidence Act 2006, s 40(1). There has been some debate as to whether s 43(1) is different
from the more traditional test in s 8(1) – see the discussion in Mahomed v R, above n 5, at
[61]–[67].
17 Evidence Act 2006, s 43. See Richard Mahoney (ed) Adams on Criminal Law – Evidence
(online looseleaf ed, Brookers), at EA43.04 [Adams on Criminal Law – Evidence].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
171
Section 40 sets out what evidence can correctly be classified as “propensity
evidence”, triggering the subsequent sections. If evidence does not satisfy the
classification criteria of propensity evidence, then its admissibility will be
determined under sections 7 and 8.18 Propensity evidence is defined as:19
[E]vidence 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.
It therefore casts a “wide net”; not only capturing evidence of a person’s
propensity to act in a certain way, but also of their state of mind.20 The
deliberate terminological move from “similar fact” to “propensity”, as
noted in Healy, rejects the common law position that evidence showing a
propensity is not admissible as similar fact evidence.21 Examples of evidence
that have been classified as falling within this definition include evidence
of: possession of specialist tools which would assist in the commission of an
offence;22 evidence of a prior instance of neglect of the victim in the context
of a charge of failing to provide the necessities of life;23 previous unlawful
sexual conduct;24 and evidence relating to a separate charge.25 This appears to
be consistent with the trend developing prior to the 2006 reforms, as noted
by the Court of Appeal,26 towards admitting a broader range of similar fact
evidence.27 Once it has been established that the evidence can properly be
classified as propensity evidence, it then must pass through the balancing
test contained in section 43. Section 43(1) provides that in order for
propensity evidence to be admitted, the probative value of the evidence must
outweigh “the risk that the evidence may have an unfairly prejudicial effect
on the defendant.” Section 43 provides the mechanisms for determining
this balancing exercise. It is prescriptive, but not exhaustive, and provides
a number of factors that a judge may take into account in determining the
probative weight of the evidence.
18 Mahoney and others Act and Analysis above n 2, at EV40.02.
19 Evidence Act 2006, s 40(1)(a).
20Mahoney Adams on Criminal Law – Evidence, above, n 17, at EA40.02(2). See also Mahomed
v R, above n 5, at [2].
21 R v Healy, above n 14, at [52] per Ellen France J.
22 R v Cooper [2007] NZCA 395.
23 R v Mahomed [2009] NZCA 477.
24 R v Healy, above n 14.
25 R v Nairn HC Wellington CRI-2006-085-7140, 16 April 2008.
26 R v Horne CA 80/94, 18 July 1994, cited in Law Commission Disclosure to Court, above n 7,
at [2.36].
27 New Zealand Law Commission Disclosure to Court, ibid. See also R v F CA 227/94, 28
March 1995; R v J CA 525/94, 24 April 1995; R v Jones (2003) 20 CRNZ 583 (CA) at [22];
R v M [1999] 1 NZLR 315. See also Boardman v Director of Public Prosecutions [1975] AC
421 (HL) at 442. See also New Zealand Law Commission Evidence Law: Character and
Credibility: A Discussion Paper (NZLC PP27, 1997) at [237] and [240].
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At the outset, in determining probative weight, section 43(2) provides
that “when assessing the probative value of the evidence, the judge must take
into account the nature of the issue in dispute.”28 In Freeman the Court of
Appeal stressed that in determining whether to admit propensity evidence,
the judge should “as precisely as possible” identify the issue in the case for
which the evidence is adduced.29 The Court then observed that, where the
issue is broad, there is “often greater judicial reluctance to admit evidence of
similar offending (particularly if there is only one such other incident) than
where the issue in dispute is defined more narrowly.”30 The Court stated that
evidence that reveals no more than a propensity to commit similar types of
offences to the one alleged, will often be inadmissible due to the inevitable
prejudice, “particularly so where the characteristics of the offending in
question are unremarkable.”31 An example of narrowly defining the issue
can be found in Hudson v R 32 in which the Supreme Court upheld the Court
of Appeal’s finding that the propensity evidence was relevant only for the
limited purpose of showing the defendant’s tendency to react with extreme
violence when in a jealous state.33
Once the issue is identified, section 43(3) then sets out a number of factors
which the court may take into account in order to assess the probative value
of the evidence. These factors reflect the common features of the common
law34 and include: frequency, connection in time, similarity, the number of
complainants, an assessment of whether that number could be as a result of
collusion or suggestibility and the extent to which the evidence is unusual.35
Sections 43(4)(a) and (b) provide that, when assessing the prejudicial effect
of evidence, the judge must consider whether the admission would “unfairly
predispose” the fact-finder against the defendant and whether the fact-finder
will give disproportionate weight to the evidence.36 These factors are not
exhaustive but, unlike the section 43(3) factors, are mandatory.37 Thus, this
section provides for an analysis of the presumed inevitable prejudicial effect.38
Once the probative value and risk of prejudice of the evidence has been
ascertained, the judge must then perform the balancing exercise as required
by section 43(1).39 The Act does not, however, provide any guidance as to
how a judge is to actually perform this section 43(1) weighing up process.40
28 Evidence Act 2006, s 43(2).
29 Freeman v R, above n 11, at [21]. This could include, for example, the credibility of the
complainant or whether the defendant is guilty. See also R v Stewart [2010] 1 NZLR 197,
[2008] NZCA 429 at [16].
30 Freeman v R, above n 11.
31Ibid.
32 Hudson v R [2011] 3 NZLR 289, [2011] NZSC 51.
33 Ibid, at [57].
34 Mahoney and others Act and Analysis, above n 2, at 173.
35 Evidence Act 2006, ss 43(3)(a)–(f).
36 Ibid, s 43(4).
37 R v Sharma [2009] NZCA 23 at [17]. See also Mahoney Adams on Criminal Law – Evidence,
above n 17, at EA43.08.
38Mahoney Adams on Criminal Law – Evidence, ibid.
39 Ibid, at EA43.09.
40 R v Stewart, above n 29, at [17]. The Court of Appeal cites Mahoney and others Act and
Analysis, above n 2, at 183. See also R v RM HC Napier CRI-2008-041-819, 14 July 2008 at
[56].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
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If a judge decides that evidence has sufficient probative value, directions
must be given to the jury in order to address any unfair prejudicial effect the
evidence may have.41
III. Propensity Evidence and Cases Involving Sexual
Offending
Consent or reasonable belief in consent forms the basis for the defence
in the majority of acquaintance rape cases.42 A study undertaken for the
Ministry of Women’s Affairs43 has specifically looked at attrition rates
of sexual offence cases in the criminal justice system; determining the
proportion and type of cases that begin but do not continue through the
criminal justice system.44 Interestingly, the study found that, where reported,
there is a high prosecution rate where the complainant and the defendant are
family members or current or ex-partners.45 However, whilst there is a high
conviction rate for family members, it is low for current and ex-partners.46
A reason offered for this low conviction rate is, inter alia, the difficulties in
proving lack of consent.47 Where the defendant is an acquaintance, rather
than a partner or family member, there is also a high attrition rate and a low
conviction rate.48
Our research has considered a selection of post-Evidence Act reform
High Court and Court of Appeal decisions that involve a determination of
the admissibility of propensity evidence where the charges relate to sexual
offending. Over sixty cases of sexual offending from the introduction of the
2006 Act up until May 2011 involved a decision about the admissibility
of propensity evidence. This sample includes those cases involving
determinations of severance or joinder of charges that naturally involve a
determination of whether the evidence relating to the separate charges is
admissible as propensity evidence.49 Fifteen of these cases were acquaintance
rape scenarios where the charge was laid under section 128 of the Crimes
Act 1961 and the issue was, or could have been, consent or reasonable belief
in consent.50
41See R v Stewart, above n 29, at [52]; R v Beazley, above n 15. Note that the minority of the
Supreme Court in Mahomed v R, above n 5, at [94]–[95] doubted the helpfulness of the
seven-stage process determined in R v Stewart.
42 Graeme Panckhurst “Consent in Rape: An Elusive Concept” in J Bruce Robertson (ed)
Essays on Criminal Law (Brookers, Wellington, 2004) at 182. See Crimes Act 1961, s 128(2)
for the elements of the crime of sexual offence or rape.
43 Ministry of Women’s Affairs Restoring Soul: Effective Interventions for Adult Victim/ Survivors
of Sexual Violence (Wellington, 2009).
44 Ibid, at [4.1].
45 Ibid, at [4.3, Table 4].
46Ibid.
47 Ibid, at [4.3].
48Ibid.
49See M (CA198/10) v R [2010] NZCA 219 at [28].
50 These cases relate to charges that have been laid pursuant to Crimes Act 1961, s 128. It must,
however, be noted that these are preliminary findings and are based primarily on appeal
cases as opposed to decisions at trials.
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We now explore how the courts are dealing with evidence of previous
convictions or past conduct under the propensity provisions where the issue
is, or could be, consent or reasonable belief in consent, beginning with a
discussion of Freeman.
As noted above, precise issue identification is essential to the propensity
evidence analysis. While there are a number of factors in section 43(3) that
affect the probative weight of evidence, sufficient relevance to the issue is
primarily determinative of its admissibility.51
In Freeman, where the Court of Appeal stressed the importance of the
precise framing of the issue,52 the allegations involved sexual offending by
the appellant against the complainant, the 21 year-old sister of the appellant’s
partner. The offending allegedly occurred under circumstances where the
partner was either in the house or could return home at anytime.53 This
was an appeal against conviction and the defence at trial had been that the
touching had been consensual.54 The proposed propensity evidence was that
of a friend of the appellant’s partner. She alleged that one evening, after all
three had been drinking together, she had fallen asleep beside the appellant’s
partner and awoke to find the appellant having intercourse with her.55
Judge McKegg, the trial judge, had framed the issue for the jury as being
whether the appellant had a tendency to act sexually inappropriately and
non-consensually with young women.56
The Court of Appeal criticised the way in which Judge McKegg formulated
the issue for the jury; finding that it was more in line with summing up
directions given prior to the Act. The Court’s criticism was that this was
“in effect a general propensity to offend sexually.”57 The Court of Appeal
then refined the issue to be whether the appellant would risk engaging in
non-consensual sexual activity with someone connected to his partner in
circumstances where the partner was sometimes present and “where there
was every likelihood of a complaint by his victim to his partner.”58 The Court
held that the propensity witness evidence of similar non-consensual sexual
activity with someone associated with his partner, while his partner was in
the house had probative value in “indicating indifference on the part of the
appellant to the risks of both complainant and any adverse reaction from his
partner.”59
The framing of the issue as broadly as it was in the High Court is logical;
the fact that the defendant had non-consensual sex on another occasion is
clearly relevant to the issue of whether the defendant has a propensity to
have non-consensual sex. However, the objection of the Court of Appeal
in Freeman was that the framing of the issue in this broad way means the
evidence offered demonstrates the defendant’s “mere propensity” to behave
51 Evidence Act 2006, s 43(2).
52 Freeman v R, above n 11, at [21] and [25].
53 Ibid, at [2]–[6].
54 R v Freeman DC Nelson CRI-2008-042-2921, 17 November 2009 at [3].
55 Freeman v R, above n 11, at [8].
56 Ibid, at [24].
57Ibid.
58 Ibid, at [22].
59Ibid.
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
175
or offend in this way. Hence, for such evidence to be admitted, it must relate
to a precisely framed issue so to ensure that it demonstrates more than a mere
propensity to offend sexually.60 This approach in Freeman, to the requirement
of precise issue identification, has been endorsed in subsequent cases.61
These next sections explore, from the sample of fifteen cases, decisions
concerning the admissibility of previous or other conduct or convictions62
which involve, or could involve, the issue of consent or reasonable belief in
consent.
A. Where the Primary Issue is Identified as Being Consent or Reasonable
Belief in Consent
In four of the fifteen cases, the main issue was whether there was consent
or reasonable belief in consent. In light of the approach in Freeman, if the
issue is identified broadly as being reasonable belief in consent, then evidence
of the fact that the defendant has committed a similar offence on a prior
occasion should be inadmissible as it is “mere propensity” evidence. In
order for such evidence to become admissible, the issue needs to be more
precisely framed so as to remove it from the realm of being classified as mere
propensity. In all four of these cases the propensity evidence offered was
deemed relevant. It is, however, argued that the reasoning of the court in the
first three cases was questionable as to whether the evidence offered was in
fact relevant to the issue. In only one of these cases (Healy) was the evidence
admitted or joinder ordered.
The Court of Appeal in Vuletich v R63 held that where the issue is
reasonable belief in consent, then the evidence must demonstrate a
propensity to disregard or to be indifferent as to whether there was consent.64
In this case, the appellant appealed against a decision to join the trials of
two complainants on the basis of a propensity evidence analysis.65 The first
complainant’s evidence occurred in the context of a brief relationship and
related to numerous events that allegedly took place in Auckland involving
forcible entry into the complainant’s home, sexual violence and rape. The
evidence relating to the second complainant allegedly took place in Paihia
and related to one occasion in a backpackers hostel where the defendant
allegedly got into bed with the second complainant while she was sleeping
and digitally penetrated her.
60 Ibid, at [21] and [25].
61See Vuletich v R, above n 15; M (CA198/10) v R, above n 49; R v AJS HC Tauranga CRI2010-070-2263, 10 March 2011 at [29]; R v LSN HC Auckland CRI-2010-092-2216, 13
December 2010 at [68]; R v C (CA352/10) [2010] NZCA 614 at [34]; S (CA40/11) v R [2011]
NZCA 124; R v Barnett HC Rotorua CRI-2010-063-0780, 21 April 2011; R v Faamoana
HC Auckland CRI-2010-009-2190, 18 May 2011.
62 The Court of Appeal in R v Mata [2009] NZCA 254 at [45] held that propensity evidence
could include evidence subsequent to the alleged offending. See also Solicitor-General v Rudd
[2009] NZCA 401; R v N HC Nelson CRI-2008-042-4268, 8 October 2009.
63 Vuletich v R, above n 15.
64 Ibid, at [36].
65See R v Vuletich DC Auckland CRI-2009-090-1074, 26 January 2010.
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Glazebrook J was of the view that in the District Court, Judge Sharp had
made too broad an assessment in framing the issue as the credibility of the
complainants.66 Rather, the Court held that, while the main issue differed
in respect of the separate complainants,67 the issue of “whether Mr Vuletich
indulged in sexual acts without consent and without reasonable belief in
consent” is the same in respect of both sets of offending.68 At this “general
level”, it was held that the separate evidence would support the other and the
fact that Mr Vuletich may have acted without consent would make it more
likely for the other offences to have occurred.69
The appeal against the joinder of the charges was, however, successful.
While noting that the focus is to be on the similarities,70 Glazebrook J
found the dissimilarities in this case were significant and, conversely, that
the similarities were “[…] relatively minor or relatively common place in
the context of sexual offending generally.”71 Following an assessment of
section 43(4), it was held that the evidence of the first complainant would
undoubtedly be prejudicial and there was a risk that the jury would not take
account of these different circumstances and would give inappropriate weight
to the evidence.72 The Court of Appeal held that joinder was inappropriate
on that basis.73
The approach in Vuletich was followed in M v R where the Court of
Appeal reversed an order joining charges relating to two complainants.74 The
first complainant (A), who had previously been in a relationship with the
defendant and still shared a flat, alleged that the appellant had come into her
bedroom, intoxicated, wearing only his underpants. He allegedly climbed on
top of her, groped and partially undressed her before he carried her into the
living room and had sex with her “from behind”.75 The second complainant
(B), who was a friend of the defendant, alleged that after she had been
drinking she went to stay at her friend’s (D) house and, after texting the
defendant asking him to pick her up and take her home, fell asleep next to
D. B alleged that the appellant came into the bedroom intoxicated, climbed
into bed behind B, began to touch her, digitally penetrated and raped her. D
left the room and the defendant continued having sex with B. The appellant
told the police that he thought he was having intercourse with D, with whom
he had had a previous relationship.76
In accordance with the decision in Freeman, the Court of Appeal set about
re-framing the issues more precisely. In respect of complainant A, where the
appellant denied the rape and asserted that there was a sexual relationship at
66 Vuletich v R, above n 15, at [31].
67 The issue relating to the Auckland complainant was consent and equivocation and in relation
to the Paihia complainant, was the issue of whether the sexual violation occurred or whether
it was accidental.
68 Vuletich v R, above n 15, at [35].
69 Ibid, at [35] and [36].
70 Ibid, citing R v Mataria, above n 15, at [27].
71 Vuletich v R, above n 15, at [38(c)(iii)].
72 Ibid, at [42]–[44].
73 Ibid, at [50].
74 M (CA198/10) v R, above n 49.
75 Ibid, at [3]–[5].
76 Ibid, at [10]–[14].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
177
the time, the issue was framed as whether the events did happen as alleged
and, if so, whether the defendant believed on reasonable grounds that there
was consent.77 In respect of complainant B, where the defence was mistaken
identity, the Court held that the issue was whether the defendant believed
“on reasonable grounds that he was having sex with D and that she was
consenting.”78
In terms of the section 43(3) analysis, the Court of Appeal found nothing
remarkable about any of the similarities between the evidence that had been
given weight by Judge Roberts in the District Court.79 The Court further
noted that they did not provide a “proper foundation for the jury to reason
that the appellant’s defence involves an implausible coincidence that two
women would wrongly accuse him of similar conduct.”80 Therefore the
Court concluded, noting that its decision was in line with Vuletich v R, the
proposed propensity evidence would also be inadmissible on the basis that
the probative value was outweighed by its prejudicial effect.81 Further the
Court determined that the fact that there was a distance in time of two and
a half years between the alleged offences, where there was none in Vuletich,
rendered it an even stronger case for severance.82
Along with seeking joinder of the complainants, the Crown had also
sought to adduce propensity evidence from another witness (PL). She would
give evidence that the defendant had come into her bedroom at night but
had left after she had screamed and repeatedly told him to leave.83 The
Crown sought to lead this evidence to demonstrate a propensity to “call
unannounced, under the influence of drink, and to enter to bedrooms of
sleeping women.”84 Judge Roberts had framed the issue as being one relating
to the credibility of the complainants and whether the Crown could prove
its case.85 The Court of Appeal found that, due to the fact that there was
no suggestion that anything occurred in the bedroom, the evidence of PL
was “inherently light in probative value, but heavy in unfair prejudice”.86
Further, the Court could not see how the evidence of PL could be considered
probative of the issues of whether the alleged offence occurred or whether
there was reasonable belief in consent. The evidence was therefore deemed
inadmissible.87
Vuletich and M v R raise two points of interest. First, the Court of
Appeal’s framing of the issue does not seem to be consistent with Freeman.
Framing the issue as to whether there is a propensity to disregard consent
(Vuletich) or whether the defendant believed on reasonable grounds that they
were consenting (M v R) is open to criticism as simply being another way
77 Ibid, at [31].
78 Ibid, at [32].
79 Ibid, at [36].
80 Ibid, at [37].
81 Ibid, at [38].
82 Ibid, at [41].
83 Ibid, at [24]–[25].
84 Ibid, at [26]. In support, the Crown relied on Tohu v R [2010] NZCA 23.
85 Ibid, at [30].
86 Ibid, at [42].
87Ibid.
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of phrasing the expressly rejected “tendency to act inappropriately and nonconsensually”. However, some difference in approach may well be consistent
with the fact that these are severance decisions, not admissibility decisions.
Conversely, these cases highlight situations where the court may be unable
to more precisely define the issue than that of consent or reasonable belief
in consent.
Second, these cases demonstrate how, even in the rare occasion where
the evidence is deemed relevant to the issue of reasonable belief in consent,
this is only one element indicating its probative value. The evidence may
still fail the test of admissibility (or joinder) should, in other respects, its
probative value be considered low. The courts in both Vuletich and M v R
relied upon the Court of Appeal decision of Healy, perhaps explaining why
the Court of Appeal similarly found that evidence of other sexual conduct
was relevant to the specific issue of reasonable belief in consent. However,
both cases demonstrate how, no matter how the issue is defined, if the
circumstances between incidents are not sufficiently similar, evidence of
previous convictions will not be admitted.
The third case, Healy, has been extensively cited as the authority for
the principle that the starting point for the determination of admissibly of
propensity evidence is the words of the Act.88 The Court of Appeal’s approach
as to admissibility in this case, however, appears to have been largely ignored.
This case involved two complainants (P) and (F) who alleged indecent
assault and rape by the defendant who was a counsellor at the Centerpoint
Community where both of the complainants were living.
The accounts of both complainants involved significant similarities
regarding the nature of the sexual activity. The appellant appealed partly on
the basis that in the High Court, Asher J was wrong to find that evidence
of the fact that the appellant had raped on a previous occasion had any
bearing on the issue of whether he believed on reasonable grounds that the
complainant consented.89 In support, the appellant’s counsel referred to an
Australian High Court decision of Phillips v R,90 decided prior to the 2006
reforms. The High Court in Phillips determined that, in cases involving
multiple complainants alleging sexual offending, the evidence of one
complainant that they did not consent does not have probative value as to
the issue of whether another consented.91 It is suggested that this reasoning
is in line with Freeman in that such evidence would demonstrate a “mere
propensity” to offend. In Phillips, however, the High Court admitted the
evidence (although emphasizing the need for caution in the use of such
evidence) on the basis that it demonstrated the “improbability of similar
lies”.92 The Court of Appeal in Healy rejected Phillips with surprisingly few
88
89
90
91
92
R v Healy, above n 14, at [46].
Ibid, at [57].
Phillips v R (2006) 225 CLR 303.
Ibid, at [46].
Ibid, at [39].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
179
reasons other than that Phillips was decided prior to the implementation
of the Act and had rejected propensity reasoning in favour of probability
reasoning.93
The Court appears to have accepted the issue as being that of consent
and concluded, upholding Asher J’s decision, that “[t]he evidence of other
allegedly non-consensual offending could be propensity evidence”.94 In
support of this the Court noted that there are a number of cases where similar
fact evidence was admitted where consent or reasonable belief in consent was
in issue “albeit without a great deal of analysis as to the basis for this.”95 The
Court may have been indicating that there may be occasions where evidence
of other non-consensual conduct is admissible where the issue is identified
as being about consent or belief in consent. However, such a possibility may
well no longer be permissible in most cases as a consequence of the Court’s
later approach in Freeman.
R v Faamoana96 provides an example of a decision that follows the
reasoning in Freeman. In this case, involving allegations that Faamoana
sexually violated his 16 year-old niece between 2005 and 2007, the Crown
made application to offer propensity evidence of the defendant’s previous
conviction for rape in 1995. Brewer J, noting Vuletich, determined that the
issue needed to be more precisely framed than that of “credibility” of the
complainant.97 Thus the issue was identified as being consent or reasonable
belief in consent.98
Brewer J held that the evidence was propensity evidence in that: 99
[…] on a general level it tends to show the defendant’s propensity to commit sexual acts
without a belief in consent or indifference as to whether or not there is consent. It also
shows a propensity to threaten his victims.
However, following an analysis of the section 43(3) factors, His Honour
declined the application, holding that the probative value of the evidence was
low.100 This was primarily based on the dissimilarities between the offending,
the distance in time between the offending and the lack of unusual features
to link the offending.101 His Honour, referring to Freeman, noted that, in the
absence of any unusual features to link the two sets of offending, evidence
that “merely suggests a propensity” to engage in non-consensual sexual acts
“[…] is of low probative value, since that is a factor almost always present
where there are allegations of rape.”102
93 R v Healy, above n 14, citing Phillips v R, above n 90, at [39].
94 Ibid, at [67].
95 Ibid, at [68]. 96 R v Faamoana, above n 61.
97 Ibid, at [11].
98Ibid.
99 Ibid, at [10].
100 Ibid, at [12].
101 Ibid, at [13].
102Ibid.
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B. Where the Evidence Relates to Other Issues and/or is Precisely Framed
Two of the fifteen cases provide examples of how the more precise framing
of an issue, separate to that of reasonable belief in consent, has allowed for
the admission of propensity evidence. Freeman, which has been canvassed
in detail, is an example of precise issue identification that can lead to the
admission of propensity evidence.
In Tohu v R,103 the complainant (X) alleged that the defendant entered
her home uninvited and made unwanted sexual advances leading to touching
and eventually attempted intercourse.104 The defence was signalled to be that
X was known to the defendant and that all sexual activity was consensual.105
The propensity evidence offered was that of another witness (Y) who would
give evidence that the defendant, who was known to her, entered her house
uninvited while she was sleeping. She would give evidence that she woke up
to him entering her bedroom and he then approached her and put his hand
over her mouth. Nothing unlawful eventuated and Y drove him home.106
Another witness (Z) could give evidence that one evening she heard a noise
which sounded like a window being removed from her laundry and called
the Police.107
The propensity evidence was offered by the Crown to prove a tendency
of the defendant to enter the homes of women who live alone, without
consent.108 In response to the appellant’s argument that Judge Harvey
was wrong to admit the evidence,109 the Court of Appeal stated that this
argument misunderstood the nature and purpose of propensity evidence and
found that:110
[t]he evidence is not designed to be relevant to the broad issue of consent [but rather
relevant to] determining the conflict of evidence about how he came to be at the
complainant’s house […]
The purpose of the propensity evidence was to demonstrate a tendency
as proposed by the Crown and is relevant as it will assist the jury in its
determination of a fact in issue; the circumstances in which the defendant
came to be inside X’s home.111
These cases demonstrate that where there are unique features that are
readily identifiable specific to the offending, it is much easier for the court
to precisely frame an issue and ultimately admit the evidence when there is
sufficiently similar behaviour. However, it is unlikely in most acquaintance
rape cases for there to be identifiable unique features. The previous sexual
encounters may be similar but not unique. It is perhaps easier in cases
103 Tohu v R, above n 84.
104 Ibid, at [4]–[6].
105 Ibid, at [7].
106 Ibid, at [8]–[9].
107 Ibid, at [11]. The Crown also sought to lead evidence from Z of an incident three weeks
earlier whereby a man named “Rex”, the defendant’s first name, came to her house at 10pm
and told her that his Aunty had previously lived there.
108 Ibid, at [8].
109 Ibid, at [17].
110 Ibid, at [21].
111Ibid.
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
181
involving young complainants as that factor, in itself, has been held to
be an unusual factor, thus justifying a more precisely framed issue of, for
example, whether the defendant has a propensity to engage in sexual acts
with young people in specific circumstances.112 It follows, that it is easier for
a court to assess the probative weight of evidence. For instance, in the High
Court decision of R v Barnett,113 Potter J held that the evidence of a previous
conviction that purported to demonstrate a tendency of the defendant to
engage in inappropriate sexual conduct with young vulnerable females lacked
the specificity required by this case and was not evidence of a propensity of
the defendant to engage in rape or kidnapping or repetitive sexual offending
against young vulnerable females.114
The following cases are decisions where the courts, due to the nature
of the defence or the circumstances of the alleged offending, were able to
identify an additional issue or define one more precisely.
C. Where the Issue is Something Other Than Consent or Reasonable Belief
in Consent or is More Precisely Framed
Where the issue is identified as being something other than reasonable
belief in consent, particularly when the evidence relates to a denial of the
allegations, it appears there are more opportunities for the court to admit
evidence of other convictions or misconduct.
1. Where the issue relates to denial that the events occurred
Six of the fifteen cases involved a denial that the events occurred.
Accordingly, in two of these cases, the issue was defined as whether the
defendant did commit the alleged offending. In the remaining four cases,
however, where two decisions refined the issue more precisely, the remaining
two broadly defined the issue as being the “credibility of the complainant”.
These cases suggest that where the defence is denial, then evidence of
other conduct or convictions appear to be readily admissible in order to
demonstrate that the defendant has a propensity to commit such offences or
behave in such a way.115
In R v Sharma116 the 20 year-old complainant alleged that the defendant,
while driving her from Hastings to Mount Maunganui, indecently touched,
digitally penetrated her and forced her to touch him.117 All of this occurred
while the defendant was driving. The propensity evidence offered was in the
form of a previous conviction relating to an incident where the defendant
offered to drive the 16 year-old complainant home, stopped the car in an
112 See for example, R v AJS, above n 61, at [36] where the High Court re-framed the issue to
be “whether the respondent has a propensity or proclivity to subject young female blood
relatives of his wife, living under his protection in his household, to unwelcome sexual
activity when they are sleeping at night,” or S (CA40/11) v R, above n 61, at [29] where the
issue is framed as whether the appellant “would offend against young relatives when an
opportunity arose to do so.”
113 R v Barnett, above n 61.
114 Ibid, at [34].
115 See for example Solicitor-General v Rudd, above n 62; R v Cooper, above n 22; R v RM, above
n 40.
116 R v Sharma HC Rotorua CRI-2008-063-3826, 30 November 2009.
117 Ibid, at [5]–[10].
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orchard, climbed on top of her, bit her breasts and digitally penetrated her.118
The issue before the court, due to the defence of denial, was whether the
events occurred.119 Venning J held that evidence of the previous offending
and conviction had significant probative value in relation to the issue.120
His Honour found that this offending demonstrated a propensity to offend
against women half the defendant’s age and taking control of them while
they were in his car.121
In R v Franklin,122 the complainant alleged that following a night of
drinking with the defendant, she went to lie down due to feeling dizzy.
She alleged that the defendant followed her and went away when she told
him to stop but woke later to find the defendant on top of her. Again the
defendant “backed off” when she told him to stop, but later woke to find
the defendant having sex with her and, despite her protestations, he would
not stop.123 Chisholm J identified the issue as “whether or not the defendant
raped the complainant.”124 The propensity evidence the Crown wished to
offer was a previous conviction for rape.125 The events relating to the previous
conviction involved a similar situation whereby the defendant was socialising
with a very intoxicated complainant. The complainant subsequently went
to bed and woke up with him having sex with her.126 The Court found the
previous conviction to be admissible propensity evidence on the basis of the
similarities of the two separate events.
While the issue in Franklin clearly lacks the desired precision, it is
suggested that “whether the defendant raped the complainant” would not
necessarily be inaccurate if the defence was denial and, arguably, a more
precise framing of the issue for a propensity analysis is not necessary in such
a case. The difficultly is that, due to the fact that this was a pre-trial hearing
where the defendant had not made any statement to the police, the defence
and thus the issue at the pre-trial hearing was not clear.
2. Where the issue is framed as credibility of the complainant
Interestingly, two of these cases, where denial was quite clearly the
defence and thus should have assisted with the framing of the issue, the
issue was framed as being the credibility of the complainant. This is despite
the express disapproval of the broad framing of such an issue by the Court
of Appeal in Freeman and Vuletich. For instance, in W v R127 the appellant
appealed against his conviction and sentence in respect of a charge of sexual
violation and unlawful sexual connection with a 13 year-old boy in 2008.
118 Ibid, at [14]–[19].
119 Ibid, at [26].
120 Ibid, at [31].
121Ibid.
122 R v Franklin HC Christchurch CRI-2009-061-537, 30 October 2009.
123 Ibid, at [4].
124 Ibid, at [26].
125 Ibid, at [20].
126 Ibid, at [21].
127 W (CA591/10) v R [2011] NZCA 135.
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
183
The offending involved the appellant performing oral and anal sex
and three indecent acts on the boy on three distinct occasions while they
were working and living in close proximity. At trial, evidence of a previous
conviction for two counts of sexual violation of a 14 year-old boy in
similar circumstances was admitted as propensity evidence. The appellant
had denied the allegations, thus Heath J had framed the issue at trial as
whether the propensity evidence indicated a tendency to engage in sexual
activity with young boys.128 The basis of appeal therefore was restricted to
a challenge of the accurate application of the balancing test between the
probative value against the unfair prejudicial effect.129 The Court of Appeal,
in ultimately dismissing the appeal, noted that “the critical issue concerned
the credibility of the complainant.”130 The Court then went on to state that
the as the appellant had denied the offending and indicated (in his video
interview) that he would not act in that way towards someone of that age,
the propensity evidence “goes directly to that issue”.
In R v LSN,131 Keane J framed the issue as credibility of the complainant132
despite expressly referring to Freeman and noting the precise framing
requirement.133 His Honour also noted that where the issue is broadly
framed, the evidence is unlikely to be admitted.134 LSN involved five charges
of sexual offences by the defendant against his partner of eighteen months.
The Crown sought to lead propensity evidence of a prior conviction in 2009
for two assaults on the complainant. Keane J framed the issue as being the
complainant’s credibility and that the Crown wished to rely on the fact
that the defendant had assaulted the complainant on a previous occasion
to establish that the complainant’s evidence is “more likely to be true”.135
Despite the broad framing of the issue, Keane J determined that its admission
was justified on the basis of propensity reasoning.136
Arguably there is nothing necessarily incorrect with the reasoning in W v
R and LSN in that, the same end point would have been achieved whether the
issue was framed as being credibility or whether the defendant committed
the offence. It is suggested, however, that this is significant and there is a
reason why the Court of Appeal in Vuletich warned against framing issues
in such a way. Credibility is always going to be in issue in sexual offence
cases and propensity evidence, and, if admitted, will usually enhance the
complainant’s credibility. But it is clear, in accordance with Freeman, that
the more broadly defined the issue, the harder it will be to admit propensity
evidence.137 Further, defining this issue in such a way focuses on the
complainant, whereas propensity evidence should focus on the defendant
128 R v W HC Gisborne CRI-2010-016-278, 27 August 2010.
129 W (CA591/10) v R, above n 127, at [9].
130 Ibid, at [13].
131 R v LSN, above n 61.
132 Ibid, at [73].
133 Ibid, at [68].
134 Ibid, at [69].
135 Ibid, at [58]–[59].
136 Ibid, at [74].
137 Freeman v R, above n 11, at [21]. See also R v LSN, above n 61, at [69]–[70]; R v AJS, above
n 61, at [36].
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and whether the defendant has a certain propensity to act in a particular
way or to have a particular state of mind. By not precisely framing the issue,
there is potential to either not allow the admission of otherwise admissible
evidence or, equally as problematic, allow for the admission of evidence that
is not of sufficient probative weight.
The preferable way to approach propensity evidence where the main issue
is identified as being credibility is to follow the approach of the Court of
Appeal in Kiwi v R.138 Kiwi involved an appeal against a pre-trial decision
of Judge Rollo to join numerous counts of sexual violation in respect of two
complainants on the basis of a propensity evidence analysis. The Court of
Appeal noted that much will turn on the credibility of the complainants but
then went on to identify individual issues in respect of each complainant.
In respect of complainant B, the issues were whether the events happened at
all and in the way alleged and whether she consented to the sexual activity
or there was reasonable belief in consent. In respect of complainant W, the
issue was whether the defendant penetrated W’s vagina without consent.
Thus, the latter, being a “whether he did it” issue, allowed the Court to find
that evidence of his actions of how he acted to complainant B was relevant
and probative.139 The Court ultimately dismissed the appeal holding that to
require separate trials would be “artificial and not conducive to the ends of
justice.”140
Similarly, in R v C,141 the defendant faced trial on charges of raping the
complainant, who suffered from a mild intellectual disability and was a friend
of the defendant’s wife. The Crown sought leave against a pre-trial ruling
excluding evidence of a previous conviction for rape of another woman who
was also a friend of the defendant’s wife and suffered from an intellectual
disability. With express reference to the issue precision requirement from
Freeman,142 the Court of Appeal found that the central issue at trial would
be the complainant’s credibility and reliability.143 This was due to the fact
that the defendant’s statement to the police had indicated denial of the events
and suggested that the complainant had fabricated the account in an attempt
to “get back” at him and his wife. The Court however then went on to note
that there would likely be an issue as to the plausibility of the complainant’s
account.144 Therefore, akin to the framing of the issue in Freeman, the Court
ultimately found that the evidence of the previous conviction was strongly
probative in that, coupled with the risk that the defendant faced in light of
the close proximity of his wife to the complainant, it “tends to demonstrate
that the defendant has a propensity to offend sexually against young women
with mild intellectual disabilities […]”145
138 Kiwi v R [2011] NZCA 78. This approach is also adopted in R v AJS, above n 61, at [29].
139 Kiwi v R, above n 138, at [22].
140 Ibid, at [23].
141 R v C (CA352/10), above n 61, at [34].
142Ibid.
143 Ibid, at [37].
144 Ibid, at [38].
145 Ibid, at [39].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
185
D. Where Issues Intermingle
Three of the fifteen cases involved issues that were intermingled or included
alongside the issue of reasonable belief in consent. These cases demonstrate
that, where this occurs, particularly where one of the issues relates to a
denial of the events, there are more opportunities for the admissibility of
evidence of other convictions or conduct. In R v Vertongen,146 the appellant
faced charges relating to four separate complainants alleging historical
sexual offences, including rape. The alleged offending occurred while all
of the complainants, as well as the appellant were either young children or
teenagers. The appellant sought severance of the charges relating to the first
complainant (AC) to be severed from the other three due to the differences in
the nature of the offending and difference in time.147 The defence in relation
to all complainants was a denial of the allegations.148
In addition, in respect of one of the complainants, while the defence had
not yet been disclosed, the appellant had raised the issue of consent by alleging
that consensual sex had occurred on one occasion. 149 In conducting a section
43(3) analysis, the Court emphasised the significant similarities between the
complainant’s accounts and attached little weight to the differences noted
by the defendant.150 The Court found that only the fact of AC’s age could
pose a risk of illegitimate prejudice, but this was reduced by the fact that
the defendant was the same age.151 Thus the Court found that the probative
value outweighed its prejudicial effect and refused to sever the charges.152
Similarly, R v Stewart153 provides an example of numerous allegations of
historic rape and other sexual violence where the defendant denied all incidents
except one when the complainant was 16 or 17-years old.154 The issues thus
involved a mixture of consent and whether the events occurred. Propensity
evidence was offered in the form of two friends of the complainant (A) and
(B) who could give evidence as to contemporaneous sexual comments and
touching by the defendant. The Court of Appeal upheld the High Court’s
ruling that complainant A’s evidence was admissible as propensity evidence,
and complainant B’s was directly relevant to the issue that there was a preexisting relationship between the complainant and the defendant.155
In R v Alden156 the High Court was faced with determining an application
for severance of charges between two complainants and an application for
the admission of propensity evidence in the form of two previous convictions
for sexual crimes. The first complainant (LS) was a friend of the defendant.
146 R v Vertongen [2008] NZCA 320.
147 Ibid, at [3]. The first complainant alleged offences occurred while the complainant and the
defendant were both young children whereas the other complainants were teenagers at the
time of offending.
148 Ibid, at [18].
149 Ibid, at [18] and [30].
150 Ibid, at [32]–[33].
151 Ibid, at [38].
152 Ibid, at [39] and [41].
153 R v Stewart, above n 29.
154 Ibid, at [3].
155 Ibid, at [26].
156 R v Alden HC Palmerston North CRI-2010-054-1873, 1 October 2010.
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She alleged that she fell pregnant when she was seventeen and that, after her
partner left her, she was raped and indecently assaulted by the defendant on
a number of occasions in mainly public places.157 The second complainant
(BP) was a friend of the defendant’s daughter and alleged that, when she was
fourteen or fifteen, he indecently assaulted and raped her.158 The defendant
pleaded guilty to the indecent assault but denied any other offending.159
The proposed propensity evidence was in the form of two previous
convictions relating to two other complainants (MS) and (CH). In respect
of MS, the defendant had been convicted of indecent assault following
allegations that, while watching a video, he put his hands inside MS’s clothing
and touched her vagina.160 In respect of CH, a friend of the defendant’s
daughter, the conviction related to offending one evening, when CH was 16,
when the defendant indecently assaulted her by way of touching and digital
penetration.161
Ronald Young J identified the issue in respect of LS to be whether the
activities were consensual or whether there was reasonable belief in consent.162
In respect of BP, the defendant denied the allegations and therefore the issue
was simply whether the events did occur as described by BP.163 Ronald Young
J undertook a detailed analysis of the section 43(3) factors and concluded
that the essence of the allegations of both complainants was that the
defendant “sexually offended against two vulnerable teenage girls who were
known to him.”164 His Honour then went on to note that the “pattern or
similarities the jury will be invited to consider by the Crown relate to both
the question of whether the event happened and the issue of consent.”165
Equally, LS’s evidence was relevant to the issue relating to BP’s allegations
in that, if a pattern of conduct is established, then “it is a pattern of nonconsensual sexual assaults.”166 Therefore, noting that this would require
careful explanation by the trial judge, His Honour found the evidence of
both LS and BP to be mutually supportive propensity evidence.167
In respect of the other proposed propensity evidence of MS and CH,
Ronald Young J found that the evidence of previous convictions was
admissible primarily on the basis of the significant similarities that existed
between the events in respect of all of the complainants.168 Ronald Young
J concluded that any prejudice that may result from admission could be
overcome by clear directions from the trial judge.169 Further, that the fact
that the evidence related to a previous conviction increased the probative
157 Ibid, at [4]–[11].
158 Ibid, at [16].
159Ibid.
160 Ibid, at [13].
161 Ibid, at [14].
162 Ibid, at [25]. This related to all of the counts relating to LS, other than the count relating to
anal rape; which the defendant denied.
163 Ibid, at [27] and [45].
164 Ibid, at [33].
165 Ibid, at [46].
166Ibid.
167 Ibid, at [49].
168 Ibid, at [55].
169 Ibid, at [65].
What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases
187
value of the evidence due to the fact that the jury would not be faced with
the distraction of deciding whether the defendant had committed the other
offending.170
There was, in addition, further propensity evidence offered in the form
of evidence from the defendant’s ex-wife (BA) who would give evidence that
the defendant was violent, would constantly “badger” her for sex and have
rough intercourse with her, despite her protestations.171 This evidence of BA
was found to be inadmissible due to the “marked differences” in the evidence
from the other propensity evidence.172 The Court also noted that the fact
that this evidence was not in the form of a previous conviction, increased its
prejudicial value.173
E. When is Propensity Evidence Admissible in Acquaintance Rape Cases?
In accordance with Freeman, precise issue identification is fundamental
to an assessment of the admissibility of propensity evidence about the
defendant offered by the prosecution. Precise framing of the issue not only
allows for relevant propensity to be admitted, but also properly allows for the
evidence to be excluded if it simply demonstrates a mere propensity of the
defendant to offend. The precise identification of an issue is important as it
has significant bearing on an assessment of whether the probative value of
the evidence outweighs its prejudicial effect. If the evidence is relevant to a
precise, narrowly defined issue, then its probative value increases. It follows
that, if the issue is too broadly framed, its probative value is lower and it is
more difficult for evidence to be admitted.
Analysis of the appeal cases post-2006 reform has revealed that it is not
only rare for propensity evidence to be offered in acquaintance rape cases,
but also that, where the issue is framed as consent or reasonable belief in
consent, there are limited options for admitting evidence of other conduct
or convictions. Of over sixty sexual violation cases post 2006 reform where
propensity evidence is in issue, only fifteen cases involve an acquaintance
rape scenario where an issue is or could be consent or reasonable belief in
consent.
Only four of the cases in the sample identify the main issue as being
consent or reasonable belief in consent. In all four of these decisions, the
propensity evidence was held to be relevant to that issue. In only one of these
cases (Healy) was the evidence held to be admissible propensity evidence,
justifying a joinder of the charges.
While the courts in these decisions expressly refer to the need to as
precisely as possible define the issue, the issue is still framed as one of consent
or reasonable belief in consent. It appears that the reason for this is due
to the fact that the courts were unable to more narrowly define the issue
in the absence of further information about the likely issues at trial. For
instance, in Vuletich, M v R and Faamoana, the decisions all highlighted the
dissimilarities or lack of characteristics unique to the propensity evidence and
170Ibid.
171 Ibid, at [17].
172 Ibid, at [52].
173 Ibid, at [65].
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current alleged offending. Thus, it could be that the Courts were constrained
in their ability to refine the issues any further than consent or reasonable
belief in consent.
As stated in Freeman, evidence of previous non-consensual conduct is
simply evidence of a “mere propensity” to offend generally. Evidence of the
fact that the defendant has offended sexually on another occasion is not
sufficiently relevant to the broad issue of consent or reasonable belief in consent
with regard to another complainant. The above analysis demonstrates that if
the court is incapable of refining the issue in a more precise manner (which
may be through the identification of unusual or unique characteristics linking
the other conduct or conviction to the current offending) or identifying
other issues to which the evidence may be relevant to, then it is unlikely
that the evidence will be admitted. Further, Vuletich, M v R and Faamoana
demonstrate that, even in the rare occasion that propensity evidence has
been held to be relevant to and probative of the broad issue of consent or
reasonable belief in consent, it may still fail the test of admissibility on the
basis of the dissimilarities or lack of unique features between the propensity
evidence and the current offending, pursuant to a section 43(3) analysis.
Further, admission of such evidence appears to be even more difficult in
cases where the evidence is of previous or other misconduct as opposed to
previous convictions.174
Two of the cases, Freeman and Tohu, are illustrative of situations where
the court has been able to define the issue with more precision than that of
consent or reasonable belief in consent, allowing for the admission of the
proposed propensity evidence. This is clearly not a simple exercise however
and is entirely dependent on the evidence available. Further, Freeman was
determined post-conviction where the issues are undoubtedly more readily
identifiable. Pre-trial applications do not have the benefit of this clarity and,
in some cases, the defence may not have been disclosed or could be less
than clear; leaving the judge to make an assumption as to what the issues
may be at trial. For instance, in Vertongen, the judge noted that the defence
in relation to one of the complainants had not yet been disclosed.175 This
difficulty of issue identification may be addressed by the enactment of the
Criminal Procedure (Reform and Modernisation) Bill 2010, which will
require a defendant to give notice pre-trial as to the nature of the issues in
dispute.176
On the other hand, where the issue is identified as something other than
reasonable belief in consent, such as whether the defendant committed the
acts as alleged (for example, when the defence is denial or identification),
then proof of the fact that the defendant has committed such an act on
another occasion can logically and more readily be admitted to prove that
the defendant has a propensity to commit such offences or where the issue
is framed more precisely. Six of the fifteen cases involved a denial that the
events occurred. Whilst two of these cases (W v R and LSN) questionably
174See R v Alden, above n 156, at [65] where the High Court discussed the admissibility of the
allegations made by the defendant’s ex-wife, BA.
175 R v Vertongen, above n 146, at [18] and [30].
176 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1), cl 64.
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frame the issue as being the credibility of the complainant, the outcome is
the same and the issue is defined in terms of whether the defendant did the
acts as alleged.
Similarly, three of the fifteen cases demonstrate that it is easier for
evidence of previous or other convictions or conduct to be deemed admissible
where the issue of consent or reasonable belief in consent is intermingled or
considered alongside other issues that more readily allow for the admission
of propensity evidence.
In summary, this article has sought to analyse decisions surrounding the
admissibility of propensity evidence, and in particular previous convictions
or other conduct, in acquaintance sexual offending scenarios. Where the
issue is identified as being consent or reasonable belief in consent, short of
the court being able to identify other issues, or more precisely frame the issue,
it appears that it will be difficult for that evidence to be admitted. In order to
more precisely define an issue, the court must be capable of identifying some
unique or similar features between the alleged offending and the propensity
evidence. Thus, in such cases the barrier to admission is two-fold. First, in
cases involving acquaintance rape, the issue is likely to be that of the broad
issue of consent or reasonable belief in consent. Due to the broad nature of
this issue, it is unlikely that any evidence of other non-consensual conduct
or convictions will be admissible. Second, even if the court does find such
evidence to be relevant to the issue so broadly defined, it may still be excluded
on the basis of dissimilarities. Indeed the reason why the court is unlikely to
be able to further define the issue is due to the lack of connection between
the evidence of previous conduct and the alleged offending.
IV. Conclusion
The propensity provisions codified the complicated common law rules
relating to similar fact evidence. The 2008 review by the Law Commission,
prompted by the public disquiet that arose over the high profile police rape
cases rightly resisted further reforms on the basis that time was needed to
assess how the courts would interpret the provisions. A further review has
been carried out and has demonstrated that overall the propensity provisions
are “working”.177 While initially there were concerns that the provisions
would “lower the bar” for admissibly of inherently prejudicial material and
that courts were displaying a tendency to avoid the provisions altogether,
these concerns appear to have been alleviated to an extent.
An aspect not included in the review, however, was whether the public
disquiet arising from the historic police rape cases, which gave rise to the
2008 review in the first place, has been addressed. The disquiet highlighted
and was a manifestation of a wider concern surrounding the high attrition
and low conviction rates in acquaintance rape cases. Additionally, this
disquiet highlights a fundamental tension between the public’s perception
of what information a jury should have before it and the defendant’s right
to a fair trial. It has therefore been timely for a review of the way in which
177 Letter from Sir Geoffrey Palmer to Hon Simon Power, above n 6.
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the propensity provisions are being applied in cases involving acquaintance
sexual offending where propensity evidence is offered in the form of the
defendant’s other conduct or convictions.
The above analysis of the sample of fifteen acquaintance sexual offence
cases, decided after the introduction of the Evidence Act 2006, ultimately
demonstrates that the concerns of the public following the police rape cases
have not been addressed. Where the issue is identified as being consent
or reasonable belief in consent, which is generally an issue in any sexual
violation case, then the admission of propensity evidence is difficult. Short
of there being a denial of the allegations on the part of the defendant, or
if they lack features that allow the issue to be defined more narrowly, be
intermingled with other issues or where another issue can be identified, the
evidence is unlikely to be found to be admissible.
It is suggested that while this allows only limited options for the admission
of propensity evidence in such cases, it is logical. It does not necessarily
follow that evidence of the fact that the defendant has had sex without
consent on a previous occasion means that they will disregard consent on
another occasion. Such evidence is highly prejudicial and thus to be deemed
admissible, as urged in Freeman, the issue must be more precisely framed so
as to increase its probative value above its inevitable prejudicial effect. It is
important that the issue is framed as precisely as it possibly can be to avoid
the admission of mere propensity evidence.
The precise framing of an issue is clearly a difficult exercise for the courts,
something exacerbated by the fact that determination of the admissibility
of propensity evidence is often conducted in the absence of the disclosure
of the defendant’s defence. Even where the defence is disclosed, and despite
the clear direction from the Court of Appeal to the contrary, there appears
to be a trend for the courts to broadly define the issue. This is apparent in
cases where the issue is not only broadly defined as consent or reasonable
belief in consent, but also where the issue is framed as the credibility of the
complainant. Whatever the reason for this, the practice is not in accordance
with Freeman and such an approach has the potential of not only making it
more difficult to admit propensity evidence but also opens up the possibility
of allowing the admission of insufficiently relevant propensity evidence.
While it makes logical sense, it signals a problem for the admission of
propensity evidence in acquaintance sexual offending cases, where the issue
is likely to involve the broad issue of consent or reasonable belief in consent.
Short of the defendant denying the events as alleged or the court being able
to more narrowly define the issue or intermingle it with other issues, it is
unlikely that propensity evidence will have sufficient probative weight to
justify its admission. Therefore, in light of the above analysis, regardless of
how the propensity provisions are working overall, it is argued that they
are non-responsive to the to the public disquiet that focussed attention on
these provisions in the first place in the wake of the historical police rape
allegations.
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The question that naturally arises is whether the provisions ought to
be responsive to the public concerns. While the aim of this paper has not
been to explore options for reform, it has demonstrated that the propensity
provisions do not readily allow for the admission of evidence of other conduct
or convictions offered about the defendant in acquaintance rape cases. This
article therefore recommends that further research be undertaken to identify
and explore possible reform options in this particular context.