R v Turner [2018] NZDC 3897

Published 17 April 2019

Propensity evidence — Freeman v R [2010] NZCA 230 — R v Tui [2010] NZCA 243 — Evidence Act 2006, ss 40(1) & 43. The defendant had pleaded not guilty to a charge of aggravated robbery. The Crown case was that the defendant and another had committed an opportunistic robbery, attacking and robbing the victim after spotting him walking in an isolated area. The defendant accepted that a robbery had occurred, but denied any involvement. These pretrial proceedings concerned an application by the Crown to admit propensity evidence at trial. The evidence related to a 2012 incident where the defendant had suddenly attacked and robbed a man he had befriended. According to s 43(1) of the Evidence Act, to get the evidence admitted, the Crown had to show that the value of the evidence outweighed the risk of prejudice to the defendant. The Crown case centred on the similarities between the two incidents, which were both opportunistic offences with an element of premeditation, involving weapons and associated offenders. The Crown argued that the trial court could address any risk of unfair prejudice with an appropriate warning to the jury. The defendant argued that the value of the evidence was low, given it related to one previous incident from several years before, and also argued that the similarities between the two incidents were not significant. The Court found that the similarities between the two incidents outweighed the differences. The previous incident showed the defendant's tendency towards this type of behaviour. The Court granted the Crown's application to admit the propensity evidence. Judgment Date: 2 March 2018.