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Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Veracity and propensity - Evidence of propensity

40: Propensity rule

You could also call this:

"A rule about using past behaviour as evidence in court"

Illustration for Evidence Act 2006

When you are in a court case, you might hear about something called propensity evidence. This is evidence that shows a person tends to act in a certain way or has a certain state of mind. It is based on things they have done, or not done, in the past. You can use propensity evidence in a civil or criminal case to talk about anyone involved. However, there are rules about when you can use this kind of evidence, especially if it is about the person accused of a crime or someone involved in a sexual case, and you must follow these rules, which are outlined in sections 41 to 43 for criminal cases and sections 44 to 44A for sexual cases.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393629.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Criminal law
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Part 2Admissibility rules, privilege, and confidentiality
Veracity and propensity: Evidence of propensity

40Propensity rule

  1. In this section and sections 41 to 43, propensity evidence—

  2. 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
    1. does not include evidence of an act or omission that is—
      1. one of the elements of the offence for which the person is being tried; or
        1. the cause of action in the civil proceeding in question.

        2. A party may offer propensity evidence in a civil or criminal proceeding about any person.

        3. However, propensity evidence about—

        4. a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and
          1. a complainant in a sexual case in relation to the complainant’s sexual experience, sexual disposition, or sexual reputation may be offered only in accordance with sections 44 to 44A.

            1. Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

            Notes
            • Section 40(1)(b)(i): amended, on , by section 7(1) of the Sexual Violence Legislation Act 2021 (2021 No 60).
            • Section 40(1)(b)(ii): amended, on , by section 7(2) of the Sexual Violence Legislation Act 2021 (2021 No 60).
            • Section 40(3)(b): replaced, on , by section 7(3) of the Sexual Violence Legislation Act 2021 (2021 No 60).