Propensity evidence — frequency and connection of offending — similarity of offending — Evidence Act 2006, s 43. The defendant faced charges of unlawful possession of a rifle and recklessly discharging it. It was alleged that the defendant became involved in a confrontation with members of a rival gang, which ended with him firing a rifle at them. The defendant denied any involvement in the incident and denied possessing the rifle. He argued that it was one of his co-defendants who had possessed and fired the rifle. The proceedings were an application by the Crown to admit as propensity evidence the defendant's convictions for possession of a sawn-off shotgun and using it to cause grievous bodily harm. The facts of the earlier offending were that the defendant had got into a fight with another person, and had fired the shotgun at him, causing severe injuries. The Crown argued that the earlier incident established the defendant's tendency to overreact and to use firearms when involved in an altercation. Section 43(3) of the Evidence Act lists factors that judges can consider in judging the value of propensity evidence. The court considered the issues of the frequency of the relevant acts and their connection in time. The defence argued that the alleged offending had occurred six years after the original offending, meaning no close connection in time. However for most of the intervening six-year period, the defendant had been in custody. Next, the court considered similarity. The Crown claimed a high level of similarity, but the defence argued that nobody was injured in the alleged offending, and also that it occurred in a different context. The court found that although the consequences in the separate incidents were different, it was largely a matter of luck that nobody was injured in the second incident. And although the two incidents occurred in different contexts, they had the same essential similarities of use of a firearm to escalate an ongoing dispute. The court accepted that the earlier offending was potentially highly prejudicial, given the serious injuries to the victim in that incident. However the Crown and the defence agreed that the risk of prejudice could be managed by omitting reference to the victims' injuries. The proposed propensity evidence provided a linkage towards establishing that the defendant had possessed the rifle and had fired it during the dispute. It was also relevant to the strength of the proposed defence that one of the defendant's co-offenders had possessed and fired the gun. The evidence of the prior convictions was held to be admissible. Judgment Date: 23 February 2018.