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Propensity Evidence

Filed under: General — Ministry of Men's Affairs @ 2:03 pm Fri 22nd June 2018

In what seems to be a recent development to increase the rate of conviction for men accused of sexual crimes, prosecutions are allowed to use innovative forms of ‘propensity evidence’. A couple of recent cases, ‘Auckland builder jailed for rape…’ and ‘West Auckland man jailed for sexual assault…’ have allowed complainants from previous acquittals to tell their unproven allegations again to the current jury, and unsurprisingly this resulted in convictions for currently alleged offending even though the evidence for that particular current offending may have been inadequate.

Disclosing past convictions to a jury is still disallowed, for good reason. The state has to convince a jury that the evidence proves the current alleged offence beyond reasonable doubt. If a defendant’s similar past conviction is disclosed at trial this will impact too much on the jury’s consideration of the current evidence. Knowledge of past offending will sway a jury’s view of the accused far out of proportion to the limited contribution that history can make to proving the currently alleged offence actually occurred.

If past convictions are allowed to be introduced as evidence, then anyone who has ever offended will be an easy target for false allegations with almost 100% likelihood of conviction.

In this light it’s very weird that previously unproven allegations of similar offending are now allowed to be introduced as evidence. They are having the expected effect of leading to almost 100% convictions.

This represents a huge erosion of justice for any accused. As is the case for many other erosions of fundamental principles of justice, it’s mainly or only sexual cases involved so those disadvantaged will be almost entirely men. Men’s sexuality is the target of a witch hunt.

It may well be that the two cases referred to above involved clear offending by bad men, but if so then the evidence concerning their current offences should have been enough. But keep in mind that those reading the articles will be as swayed as the jury was by knowing about the past allegations.

Previous reductions in justice include the removal of limitations on when sexual crimes can be reported so that many prosecutions are for alleged offending years or decades ago. Aside from the obvious problem with well-researched memory distortion likely to cause a complainant to recall historical events inaccurately, such allegations severely compromise the accused’s ability to find witnesses, alibi evidence and otherwise to defend himself.

Other erosions of justice particularly in sexual trials have included
– allowing cases to proceed at all on the basis of nothing but an allegation;
– removing the right of the accused to face his accuser;
– allowing the complainant to be seen to hide behind screens or walls so as to convey to the jury a view of the accused as dangerous and frightening;
– allowing evidence-in-chief to be presented by way of a previously recorded video interview conducted in less formal, less controlled conditions and not under oath;
– severely reducing the right of the accused to question the moral character and credibility of the complainant;
– removing the right of the accused to cross examine the complainant about her past behaviour including sexual and relationship history;
– general over-protectiveness towards complainants causing judges to curtail questioning if a complainant appears upset, even though that may be because her lies are being exposed by those questions.

This new policy of allowing others to allege similar past unproven offending really takes the cake and shows how brazen our institutionalized hatred against men has become.

Hopefully, someone with enough money will appeal this ridiculous policy all the way to the Supreme Court where its illegality will be recognized. Until then we will see many men sentenced to long imprisonments on the basis of poor evidence bolstered by character assassination.


  1. One assumes if The Crown argued its relevance there is some evidentiary test applied by the trial judge as to the admissibility of the evidence?

    Comment by Evan Myers — Fri 22nd June 2018 @ 6:43 pm

  2. The problem is that one can end up in a situation that while it is true these other events may have taken place, no conviction resulted. The defendant faces a situation that the alleged crime is being examined using events other than those alleged to have taken place. Why say no to past convictions then say yes to other allegations that have failed.
    Situations arise where the defendant has to inform the jury of imprisonment due to the, where were you during those 7 years questions etc. But “propensity evidence”?

    What’s the extremes?
    Everything indicates he could have been the offender, or to the letter of the law no offence occured, but he wasn’t or didn’t offend. The Propensity Evidence pushed the Jury over the line.

    The Judge by deciding for themselves that a previous allegation was true but it wasn’t. An atificial trial without a procecution or defence based on how convinced the Judge is by an accuser or a prosecutor on a crusade that the tried by jury, but failed allegation was truthful. Allowing it to be heard by a Jury and due to the process presented as examined and truthfull. What then if the first accusation results in the second allegation? What if for example a male was accused of abusing a young girl. A person who knows the alleged offender finds out and decides to get revenge for the little girl. He or she doesn’t need to do it themselves, there could be a volunteer (nice payday too) for such revenge. An introduction, some booze, a sperm (DNA) donation quicky. Game over! My word agianst yours. Oh your honour, please tell us about this horrible mans past. We trust your assesment of its truthfulness. Oh you poor little girl. What a monster. Don’t worry we the Jury will make sure he won’t be the boogeyman ever again.

    Imagine being a judge these days.
    Every case is Pandoras Box.

    Comment by DJ Ward — Sat 23rd June 2018 @ 1:21 am

  3. Judges play loose with the propensity evidences as it suit their personal ( not legal) view of the defendant and the applicant.

    In my Protection order case , I enlisted and corroborated 22 events , whereas the shy ” tiny, gentle woman from Japan” ( the written opinion of the judge for my ex partner) attacked me calling me ( strong, dominant with loud voice Macedonian) , Judge’s perception of me

    The applicant admitted hitting me and calling me names on those occasions but the Judge had already formed her racial stereotyping. When i told the Judge that is not unheard of tiny little women to transform to abusers behind closed doors, she could not care less. Also I corroborated the propensity evidences of the applicant’s numerous lies . No consequences for the applicant at all.

    The Judge found me as a psychologically abusive person because I quote ” I developed a tunel vision to get to the bottom of the things ” by acquiring three Affidavits and taking photos from a web site to prove she is lying .

    The Judge was a elegant , intelligent but emotional person who made her decision the very first moment the applicant start crying.

    So much for the corroborated propensity evidences . I did not appeal the verdict. I found a moral victory for me in the fact that applicant kept lying and shedding crocodile tears . That made me realise the false and pathetic nature of my ex . I would never lower myself that much.

    The applicant;s pathetic Court behaviour did much more for me than my counselor did when helping me to recover .

    Comment by Tony — Sat 23rd June 2018 @ 10:46 am

  4. The two expressed reported cases actually seem to indicate that it might be a good thing.

    Both males are rapist.

    Without this former evidence and former court cases, perhaps, these men might still be out loose preying over innocent youth.

    Sometimes what good lawyers do is exactly that, throw a case out of court for technicalities whereby the accused should be in jail.

    I however see the risks inherent with this approach.
    And maybe if other cases, examples had been used, I might be persuaded to agree with @1.

    Comment by JustCurious — Sat 23rd June 2018 @ 2:29 pm

  5. Apologies, not @1 but poster

    Comment by JustCurious — Sat 23rd June 2018 @ 2:30 pm

  6. This is just a bit complicated for a Sunday morning.

    This once again is probably attributable to the Law Commission’s recommendations – and we’ve discussed such changes before in terms of the law of the state rubber stamped without debate in parliament.

    Acts of propensity could only be used to a point that they did not actively prejudice the current trial?

    This is something I’ve seen developing for a while. A civil record as opposed to a criminal record in terms of male behaviour, and there have been other posts that could be related to this in a broader sense.

    In relation to #3 with Tony.

    This post is about prosecutions of a sexual nature, specifically, and in a criminal court and relates to the defendant only.

    The protection order case is in a civil court and relates to an application for protection.

    Trying to discuss both in one post will cause confusion.

    But …

    What we see happening in the criminal case is the accuser’s propensity legally privileged. The complaintant cannot be questioned in relation to aspects of her behaviour.

    In the civil case the claimant’s state of mind is legally privileged.

    Gradually we are seeing truth undermined. A truth turned into my truth for the purposes of women, in both the Criminal and Civil jurisdictions.

    Comment by Downunder — Sun 24th June 2018 @ 10:49 am

  7. I just lost $5, I was sure that baby what’s going to be called Helen.

    Comment by Voices back from the bush — Sun 24th June 2018 @ 12:25 pm

  8. Some research – This is what I understand, but tell me if i’m wrong.

    In sexual matters I found that the propensity evidence rule only applies to a defendant.

    Evidence Act 2006 – Propensity rule

    (1) In this section and sections 41 to 43, propensity evidence—
    (a) means evidence 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; but
    (b)does not include evidence of an act or omission that is—
    (i)1 of the elements of the offence for which the person is being tried; or
    (ii)the cause of action in the proceeding in question.

    However the rules are quite different for complainants. You cant even ask them or any other witness about their past reputation. See 44(2)

    Evidence Act 2006

    44 Evidence of sexual experience of complainants in sexual cases

    (1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

    (1A) Subsection (1) is subject to the requirements in section 44A.

    (2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

    (3)In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

    I wonder why the Government doesn’t want any question about the reputation of a complainant to be asked or presented to a jury.

    Comment by Lukenz — Sun 24th June 2018 @ 5:37 pm

  9. I found this blog article about propensity evidence
    Link Here

    Comment by Voices back from the bush — Sun 24th June 2018 @ 8:11 pm

  10. #9 interesting article in that it reflects on propensity as a human behaviour and how that relates to the jury and their decision making process.

    Comment by Downunder — Mon 25th June 2018 @ 8:19 am

  11. In a similar fashion Australia have gone down the track of a self represented person not allowed to cross examine their other half.

    Another legal privilege for women.

    Comment by Evan Myers — Thu 28th June 2018 @ 7:26 am

  12. Dumb question – do women have a propensity to make allegations unsupported by reality?
    Most women don’t go into familycaught$, so no they don’t.
    Therefore there is nothing to worry about, as the problem is less than 50%.
    (Not much fun if you are in the other 30%.)
    In the real world, individual cases should be judged on their own facts, not statistical averages.
    Quite a lot of men aren’t rapists. So we should refuse to consider rape allegations altogether, as most men are not guilty of rape…..
    Best to do the job properly, even if it takes a bit more effort to think through the actual evidence.
    Defendants should be given access to a complainant’s false allegations and mental health file.
    Children considering a sexual relationship, or winking at each other, should be given the same access.
    People considering a familycaught$ application should get the same information about the judge too.

    Comment by Murray Bacon — Thu 28th June 2018 @ 8:27 am

  13. Here comes the criminal and civil confusion with Family Courts and rapists in the same paragraph.

    A propensity is an inclination or natural tendency to behave in a particular way.

    All women may have the same thought but think better of voicing it. Should that claim make its way to the Family Court it is legally privileged for the non acceptance of the propensity of women.

    All men may have the same thought but think better of acting upon it. They are criminalised for that unacceptable behaviour.

    Comment by Downunder — Thu 28th June 2018 @ 9:30 am

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