New Zealand Police v Junior Orica [2016] NZDC 3530

Published 11 July 2016

Propensity evidence — domestic violence — male assaults female — breach of protection order — Evidence Act 2006, s 40, 43. The defendant faced two charges. Firstly, that he being a male assaulted a female, and secondly, that he breached a protection order in favour of the victim by physically abusing the protected person. The Crown sought to call propensity evidence and here it was determined whether that evidence was admissible in light of defence opposition. The propensity evidence sought to be called was of three previous instances of domestic violence, of which the defendant had pleaded guilty to two. The Judge determined, taking into account the factors in s 43(3), that the propensity evidence showed the defendant acted in a certain way towards the complainant and the complaint reacted in a particular way to his attacks. As the trial would likely hinge on the issue of credibility, the propensity evidence was highly probative. Thereafter, the Judge considered whether the probative value outweighed the risk that the evidence may have an unfairly prejudicial effect on the defendant. Defence submitted that although the trial was not a jury trial, a Judge alone is not insulated from being unfairly predisposed against a defendant, and therefore there was a real risk of unfair prejudice. This submission was not accepted. The Judge who heard the matter would be able to maintain vigilance as to that risk and remind themselves of the appropriate weight, if any, and purpose to give the propensity evidence. The propensity evidence could be lead by the prosecution at trial.