This Student Companion by Bernard Robertson appeared in the March 2015 edition of the New Zealand Law Journal  NZLJ 72a.
STUDENT COMPANION: EVIDENCE
R v T  NZCA 602
This judgment dealt with two main issues: a s 122 warning given by a trial Judge before the Supreme Court judgment in CT was given; and the admissibility of propensity evidence. This case involved sexual offending alleged to have occurred in the 1980s when the male complainant had been aged 10-12. The Judge referred to the defence concerns about the lapse of time and said:
…this was a fair submission to put to you and there is a need for caution as to whether you should accept evidence and the weight that should be given to such evidence … after such a lengthy period.
The Court of Appeal quoted from CT at length and held that when a warning was required under s 122(2)(e) it was necessary to explain why caution was necessary and to identify the relevant risks (at ). The Court repeated the kinds of matters the Supreme Court had referred to and added: “[w]hat is important, of course, is that what the Judge says must reflect the circumstances of the particular case” (at ). The Judge should also take personal responsibility for the warning and not give the impression that he or she was distancing him or herself from it (at ).
It might be thought that many rules and comments about judges’ directions to juries could simply be subsumed in the statement that judges must sum up the defence case fully and fairly. Here, however, the Supreme Court and Court of Appeal have emphasised an additional requirement that the s 122 warning must appear to come from the judge and not merely be a summing up of defence arguments.
The propensity evidence argument involved a conviction in 2002 for offending against children. The trial Judge considered that this was strongly probative of a tendency to prey on children under the defendant’s care and control and was not unfairly prejudicial. On appeal, it was submitted that the evidence was inadmissible by reason of the time lapse (that is, two events separated by 18 years did not make a propensity) and because of various differences between the two incidents.
The Court of Appeal described the time lapse as a relevant factor (see s 43(3)(a) and (b)) but not determinative. Lapse of time, the Court said, at , did not necessarily extinguish a probative propensity. The Court then referred to the similarities and dissimilarities between the two events. “Identical circumstances” were not required (at ). What the evidence showed, the Court held, was a propensity for sexual interest in children under the defendant’s care.
Two points can be made, not so much about the outcome as the reasoning. The first is that it must constantly be borne in mind that ss 40-43 of the Evidence Act do not make any evidence admissible. They restrict and regulate evidence which would otherwise be admissible under s 7. The identification of a propensity does not therefore make the evidence admissible, it brings it under ss 40-43. The first question is therefore whether the evidence is relevant. This, on the face of it, is a yes/no question. Then, if the evidence reveals a propensity, the criteria in ss 40-43 come into play. The most important of these is that the evidence may only be given by the prosecution “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”. Judges are reminded by s 43(2) that when considering probative value, consideration must be given to “the nature of the issue in dispute”.
Extent of similarity and dissimilarity is also referred to under s 43(3)(c) but this is not an independent criterion. It is a matter that may be considered when assessing probative value. The focus should always be on what the evidence proves, not how similar it is. Several judgments and extensive anecdotal evidence suggest that counsel and judges are still fixated on similarities rather than logical proof. A remarkable example is found in K v R  NZCA 83 at , although not a propensity evidence case. In dealing with a delayed complaint of sexual abuse, the prosecution witness referred to a study of children suffering from sexually transmitted diseases. The point was that one could be confident that these children had been abused, whereas other studies are talking about the behaviour of children who allege abuse. The Court of Appeal described this evidence as irrelevant because the complainant in the present case did not have an STD.
Common sense tells us that a person who sexually offends against children is liable to have proclivity to do so. But this is also true of burglars. Many burglaries are committed by people with previous convictions for burglary. Does this mean that evidence of previous convictions for burglary are automatically admissible? They are relevant, but when properly considered, their probative value in relation to a particular alleged offence is small. The question is the probative value of the evidence and that in turn depends upon what is in dispute.
In the famous common law case of Makin v Attorney-General for New South Wales  AC 57, 65 the Privy Council said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.
If the first part of this statement is attempting to lay down a rule, then it is abrogated by the Evidence Act. It is equally readable, however, as a statement that the prejudicial effect of such evidence will be greater than the probative value. It is, in any case, subject to the second part to which the key is “rebut a defence that might otherwise be open to the accused”.
In theory, a plea of guilty puts everything in issue. It is well-settled, however, that this does not enable the prosecution to introduce prejudicial evidence to counter an unlikely line of defence. In practice the nature of the dispute is determined by the defence. This is the insight reflected in the reference in Makin to rebutting a defence. Unfortunately the subsequent history at Court of Appeal level was of building up a strange list of defences and exceptions which were read as if they appeared in an Act of Parliament. One of these was so-called “striking similarity”, which was treated as a key to admission without any real consideration of what it proved. Focus on the basic principle was lost.
Clearly, if the defendant in the present case had given or called evidence that he did not do this sort of thing, the previous conviction would immediately be admissible to show that he did indeed do that sort of thing. It could also of course raise the possibility that the present complainant knew about the 2002 conviction and was attacking the defendant at a vulnerable point for some reason, but again, that would be a matter for the defence to raise. The question is whether the prosecution was entitled to adduce this evidence as part of its main case. There is obviously room for considerable prejudice in two ways. First, the jury may commit the “prosecutors’ fallacy” of believing that because the probability that a sex offender would have previous convictions for sexual abuse is high, the probability that someone with previous convictions committed any particular offence is also high. The second is that the jury may decide that this person is very unpleasant and they are not too bothered about whether it can be proved that he committed the present offence.
Given that, the question of exactly what the evidence proved and what its probative value was deserved careful thought. It is not clear that such evidence is now receiving that kind of consideration. Since the Evidence Act came into force, it seems to have become routine for this kind of evidence to be given and this, coupled with the erroneous idea that if it demonstrates a propensity it is thereby admissible, may lead to substantial prejudice.
The full March 2015 edition of the New Zealand Law Journal is available on the LexisNexis research database.