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Propensity Evidence and Relationship Evidence 

Propensity evidence is evidence that a person has a propensity to commit certain acts or behave in a certain way. Relationship evidence is evidence of the relationship a person has or had towards another person or class of persons. There are strict rules as to when these sorts of evidence may be adduced in a criminal proceeding. This article deals with propensity evidence and relationship evidence in Western Australia.

What is propensity evidence?

The definition of propensity evidence is contained in Section 31A of the Evidence Act 1906 which defines propensity evidence as:

  1. Similar fact evidence or other evidence of the conduct of the accused; or
  2. Evidence of the character or reputation of the accused or of a tendency that the accused person has or had.

What is Relationship Evidence?

Relationship evidence is defined in Section 31A of the Act to mean evidence of the attitude or conduct of the accused towards another person, or a class of persons, over a period of time.

When is Propensity Evidence or Relationship Evidence admissible?

Under section 31A(2) of the Act, propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers the following:

  1. That the evidence would, either by itself or having regard to other evidence adduce or to be adduced, have significant probative value; and
  2. That the probative value of the evidence compared to the degree of risk of an unfair trial, is such that a fair-minded person would think that the public interest in adducing all relevant evidence of a person’s guilt must have priority over the risk of an unfair trial.

Probative Value of Evidence

In Western Australia, there are certain situations in which evidence of propensity or relationship is admissible where it has ‘significant probative value’ (i.e. contributes to establishing the facts at issue) or that there is a public interest in admitting the evidence despite the risk of an unfair trial.

For propensity evidence to be considered to have significant probative value, it must either on its own or in combination with other evidence, be of ‘importance’ or ‘consequence’. 

Section 31A(3) of the Act states that in considering the probative value of evidence for the purposes of section 31A(2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

In VIM v The State of Western Australia [2005] WASCA 233 their Honours noted that Section 31A is intended to give the jury the benefit of a ‘full evidentiary familial picture’ and that evidence with ‘an underlying unity or pattern to all of the evidence’ should be admissible. 

Admissibility of Propensity Evidence and Relationship Evidence

In determining the admissibility of evidence, the court must be satisfied that the evidence to be adduced is propensity or relationship evidence and that the evidence is relevant to a fact in issue. If the court is satisfied that the evidence is relevant to a fact in issue, the court must then determine whether the evidence has significant probative value. 

In determining whether propensity or relationship evidence should be adduced, the presiding Judge or Magistrate must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. The exercise of balancing the probative strength and the degree of risk must be done through the eyes of a ‘fair-minded person’. In Dair v The State of Western Australia [2008] WASCA 72 the court considered a ‘fair-minded person’ to be a member of the general public, who is not a lawyer.

For example in The State of Western Australia v Edwards [2019] WASC 87, or what is colloquially known as the ‘Claremont Serial Killer Case’, the state filed an application seeking that the conduct of the accused with respect to some of the counts on the indictment, if proven, be admissible with respect to other counts as propensity or relationship evidence. Further, the state sought to lead, as propensity or relationship evidence, various previously charged and uncharged acts.

The state sought to lead evidence with respect to the Karrakatta offences and the Claremont Murder Offences to suggest that the accused had a tendency to prowl an area of familiarity at night-time in a distinctive manner to create or seize an opportunity to commit an offence with a sexual motive. 

The state submitted that the propensity evidence established a high degree of probative value due to the common features found in the Huntingdale Offences and the Karrakatta offences. It further submitted that the propensity evidence demonstrates an underlying unity in the offending which goes to the fact in issue, specifically identity.

His Honour agreed that the evidence was admissible with respect to Huntingdale offences as all incidents occurred in the same geological area, were close in time and the wearing or possession of a kimono was found to connect these incidents. However, His Honour also found that the use of the phrase ‘prowl’, ‘distinctive manner’ and ‘sexual motive’ were found to be encompassing a wide range of conduct and therefore did not meet the significant probative value test. 

As a result, this evidence was not admissible with respect to the Karrakatta Offence, or the Claremont Murder Offence. His Honour found that that the evidence of the Huntingdale Offences was admissible with respect to each and every other count on the indictment.

When considering any prejudice against the accused, His Honour expressed that any such risk is less likely in the case of a trial by judge alone as His Honour had the capability to disregard evidence where necessary.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

April Jarmoszewicz - Solicitor - Perth

This article was written by April Jarmoszewicz - Solicitor - Perth

April Jarmoszewicz holds a Bachelor of Laws from Murdoch University and a Graduate Diploma of Legal Practice from the College of Law. She is admitted to practise in the Supreme Court of Western Australia and in the High Court of Australia. April has a strong passion in Criminal Law and since her admission, has worked exclusively in Criminal Law. Prior...

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